My BlogDescriptionMid-code Crisishttp://www.kirwanssolicitors.co.uk/blog/rss.aspx
Fri, 15 February 2019 00:00:00Fri, 15 February 2019 00:00:00Insuring Your Property on ExchangeChristopher Courtenayhttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2019/february/insuring-your-property-on-exchange/Another question I am often asked.... Why do I need to insure my property on the exchange of contracts instead of the date of completion? Good question. It can be a common misconception with buyers of property that a Conveyancer actually acts for the mortgage lender as well as them. Whilst I will always hold my clients best interests when purchasing a property this will also be the same for the lender, so in effect, a Conveyancer is actually acting for two parties during your transaction, the buyer and the lender. When I come to a point whereby I hold a signed contract, transfer, mortgage deed and the deposit funds, this is the point that I will ask my clients to put in place and at “risk” the buildings insurance which can confuse my client. It must be noted that if you are having a mortgage you must have in place your buildings insurance from exchange of contracts. This is vital because in between exchange and completion, nothing is covering you for an event such as a fire, burglary or other. Once the exchange has taken place the sellers’ insurance would not cover you or the lender. For example, if a fire at your property was to break out in between exchange and completion, you as the buyer could pull out but you would lose your 10% deposit which is provided upon exchange of the contract, or if you carried on to completion you would be left with the aftermath of the fire. This is the specific reason why your Conveyancer will ask you for insurance on the exchange of contracts as it will be a condition of your mortgage offer that this is in place. If insurance is not in place you would already be in breach of your mortgage conditions, and would not be a good start to your relationship with your lender.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2019/february/insuring-your-property-on-exchange/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2019/february/insuring-your-property-on-exchange/Fri, 15 February 2019 00:00:00 No Fault Divorce - Could this be happening at last?Paul Hunthttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2019/february/no-fault-divorce-could-this-be-happening-at-last/The Times has reported that the Justice Minister has indicated a commitment to put a bill before Parliament to introduce ‘no-fault divorce’ “sometime after May this year”. Presently, the grounds for divorce (and for dissolution of a civil partnership) are essentially as set out in the Matrimonial Causes Act 1973. The Family Law Act 1996 introduced a new system for divorce which involved a general statement of breakdown and without having to set out what we tend to think of as “grounds” for divorce but ultimately that provision was not put into effect and was later appealed. It is arguable that having to ‘shoehorn’ the reasons for the breakdown of the marriage into the five available choices (adultery, unreasonable behaviour, desertion for two years, separation for two years when both parties consent to the divorce and finally separation for five years is an unnecessary constraint and when the periods of separation are not available, and if there is no suggestion of infidelity, then anyone wishing to start proceedings is compelled to put together details of the other person’s unreasonable behaviour. This can involve racking up matters which are not currently an issue between the spouses giving significance with hindsight, to something which perhaps not at the time is seen as the reason for the end of the marriage. Sometimes, of course, there is very serious “unreasonable behaviour” whether it consists of violent or intimidating behaviour or drug and alcohol abuse, but there are sometimes situations where the particulars of the petition suggest that there has been something of a struggle to put together a convincing narrative. This can often only serve to cause unnecessary friction between the parties and to distract them from the major issues of sorting out property and finances and the arrangements for children.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2019/february/no-fault-divorce-could-this-be-happening-at-last/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2019/february/no-fault-divorce-could-this-be-happening-at-last/Thu, 14 February 2019 00:00:00 Will Commercial Property Go Out With a Bang ? Lisa Evanshttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2019/february/will-commercial-property-go-out-with-a-bang-/We are already two months into the last year of the decade. A decade which has seen so much happen in the Commercial Property world. What is in store for 2019? Investment in Commercial Property continued to increase over 2018 as did demand for Commercial Space. CBRE David Egan comments “I think the market has outperformed this year, at least from user activity. There has been a general expectation for a number of years that this can’t continue, and it turns out that hasn’t been true. We have a massive amount of demand on the market for logistics properties of all types; obviously, the Class-A big-bulk warehouses are what gets most of the attention, but the demand is very broad-based and extending all the way down to secondary and tertiary markets,” he said. “My expectation in 2019 is that we should see more or less of the same dynamic.” There will be a number of factors that could influence the Commercial Property Market in 2019, with the first being Brexit, that’s right, there appears to be no end to Brexit and its effects. The second is the ever-changing business models and therefore the changes to demand for certain types of space, people are more sceptical than ever and therefore nobody wants to tie in, particularly to office space. People in business are more inclined to share space and only use space when absolutely necessary, working from home is becoming a more attractive option and certainly a cheaper option for many businesses. The third factor will be the tax changes for foreign investors that will be introduced from April 2019. KPMG comment “ From 6 April 2019, gains made on the disposal of UK commercial property by non-resident individuals will be liable for capital gains tax (CGT) at a rate of 20% and from 1 April 2019 foreign entities will be liable for corporation tax on the disposal of commercial property (which will fall to 17% by 2020). The new rules also cover what is known as indirect disposals: selling shares in a company that owns UK commercial property. For an indirect interest to be caught under these rules the entity must be ‘property rich’. ‘Property rich’ is defined as deriving 75% or more of asset value from UK commercial property. In addition, the investor making the disposal needs to own 25% or more of the company’s shares, or have done during the previous five years.” These three factors alone will affect the Commercial Property Market along with many others, it’s a bit of an unknown, if I were to place a bet it would be that the Commercial Property uptake will continue to increase over 2019, here's hoping.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2019/february/will-commercial-property-go-out-with-a-bang-/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2019/february/will-commercial-property-go-out-with-a-bang-/Mon, 11 February 2019 00:00:00 Bogus Law Firms: How to avoid themHannah Aistrophttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2019/january/bogus-law-firms-how-to-avoid-them/Residential conveyancing is an area of law which is a common target for fraudsters setting up a bogus law firm. A bogus firm is a firm who is not regulated by the Solicitors Regulation Authority (SRA) and pretends to be entitled to provide reserved legal activities or call themselves solicitors. This is a criminal offence and the reports of such incidents being reported are rising. In order to appear to be a regulated firm, the fraudsters may steal the identity of a genuine law firm or a solicitor, in some cases cloning the firm’s website or setting up a counterfeit branch for that firm or invent a fictitious firm or pose as a solicitor. The lengths the fraudsters will go to appear legitimate is endless and they can appear very convincing with authentic looking websites. Sometimes it is only the smallest detail which can give them away. An example of this is the setting up of an email address which appears very similar to a genuine law firm and has the slightest addition of comma or hyphen to the email address. The main risk to the individual of instructing a bogus law firm is the loss of money which could be the loss of fees paid, deposit monies or in some cases the full purchase/sale monies for a house or even the loss of confidential information e.g. bank details. Another consequence is receiving poor advice or incorrect representation. Whereas a genuine regulated firm has a duty to protect the client’s money and assets (including personal information). If you are the victim of a fake firm then you are not covered by the same protections that you would be as if you were dealing with a genuine firm such as the Legal Ombudsman to deal with any complaint or the Solicitors’ Compensation Fund. As an individual, you can trust that we have done all the steps to ensure that we are dealing with a genuine firm on the other side. We ensure we always check the firm is recorded on the Law Society website or the Licensed Conveyancers Website and the office we are corresponding with is listed there. Throughout any transactions, we are always aware of any ‘red flags’ that we may not be dealing with a regulated firm e.g. poor spelling or terminology in emails, a change of the solicitor’s bank details from what has been initially provided, firms using only mobile numbers. We will always request that other side’s solicitor's bank details be faxed to us, as emails are more easily intercepted by fraudsters and we also telephone the number stated on their letterhead to double check these details are correct. As an individual you can check the Law Society or Licensed Conveyancer website yourself before deciding who to instruct, it can also be useful for locating a firm with a location convenient to you. The key is to be vigilant that there are fraudsters out and always make sure you are instructing a regulated solicitor.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2019/january/bogus-law-firms-how-to-avoid-them/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2019/january/bogus-law-firms-how-to-avoid-them/Fri, 01 February 2019 10:00:00 New BBC Drama Care highlights the Importance of Lasting Powers of AttorneyAnnie Thomashttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2018/december/new-bbc-drama-care-highlights-the-importance-of-lasting-powers-of-attorney/The new BBC drama Care staring the brilliant Sheridan Smith aired on Sunday telling the story of a family struggling to cope with the effects of their mother (Mary) suffering an acute stroke which results in loss of capacity, both physically and mentally. While the show takes us through the emotional trauma and turmoil in placing a parent into care. One question raised during an early hospital assessment is whether or not Lasting Powers of Attorney (LPA) are in place. A Lasting Power of Attorney is a document that allows an individual to appoint people of their choosing to take over the conduct of their financial affairs and also their health and welfare decisions when they are no longer in a position to do so for themselves. Unfortunately, this had not been considered by Mary and as capacity is required in order to prepare such a document, Mary’s two daughters were having to take the much more timely and expensive route of applying to the Court of protection in order to take over the conduct of their mother’s affairs. One thing we say to our clients is that a Lasting Power of Attorney is something you make, put it in a safe place and hope that it will never be needed. But as witnessed in this heartbreaking drama, the future is unknown to anyone. Although this compelling show saw a sudden loss of capacity for Mary if you or a family member have been diagnosed with an illness such as early onset dementia where capacity may fluctuate. It is not too late to act in preparing for the future. If your doctor is able to confirm that you to have the necessary capacity to understand the document then you will be in a position to prepare a LPA. If you would like to know more about Lasting Powers of Attorney or even applications to the Court of Protection, please do not hesitate to get in touch with a member of our dedicated Private Client team.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2018/december/new-bbc-drama-care-highlights-the-importance-of-lasting-powers-of-attorney/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2018/december/new-bbc-drama-care-highlights-the-importance-of-lasting-powers-of-attorney/Wed, 12 December 2018 00:00:00 Frequently asked questions I get as a ConveyancerChristopher Courtenayhttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2018/december/frequently-asked-questions-i-get-as-a-conveyancer/One of the most frequently asked questions I receive is ‘when can I book my removals’ or even ‘I have booked my removals!’ This is one of many million dollar questions I am asked throughout the Conveyancing process. I would be delighted to confirm a specific date to my clients ASAP, however unfortunately until exchange of contracts (which then becomes a legally binding document) dates cannot be confirmed. In this day and age, it can become even more complicated, for instance, if there is a chain involved all parties have to agree on a date, and then all solicitors in the chain have to be in a position to progress the case and be ready to simultaneously exchange on that given day. Also adding to complications nowadays is the fact that exchange and completion can happen on the same day which is becoming more and more common and can be very frustrating to me and my client. In an ideal world, I and indeed any other Conveyancer would like the exchange to take place a week or two before completion, however, due to factors beyond our control and also our client's control, this is becoming increasingly tight due to the fast-paced world we now live in. My simple advice would be to liaise with your legal representative and try to gauge a mutual date that you can work towards which is achievable. You also need to factor, that if there is a chain it might be possible that someone is not at the same stage as you, and this is where the dates can quite often change. Whilst, I wouldn’t say a ‘point blank no’ to making contact with local removal companies to gauge their workload and prices, I would never suggest you book removals until a date is confirmed!http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2018/december/frequently-asked-questions-i-get-as-a-conveyancer/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2018/december/frequently-asked-questions-i-get-as-a-conveyancer/Tue, 11 December 2018 00:00:00 Exit Means EmptyLisa Evanshttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2018/december/exit-means-empty/As we wait with bated breath for Brexit and the imminent exit date, does the exit mean empty for Britain's Commercial Property Market? Investors are in decline leaving much of the UK Property Market, both residential properties, for Commercial Portfolios and Commercial Properties empty. Take Centre Point, for example, in the Centre of London. The Developer is believed to have halted sales due to the lack of interest from investors and offers to buy at unrealistic prices. According to The Guardian "more than half of the the 1900 ultra luxury apartments built in London last year failed to sell". This combined with on-line shopping is having a huge effect on the high street with retailers ditching their commercial spaces may lead to numerous empty properties across the residential and commercial property markets. Concerns over tax hikes for foreign investors are also adding to the mix. As we head into 2019 with interpretation and as Britain braces itself for exit will foreign investors be exiting along with us?http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2018/december/exit-means-empty/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2018/december/exit-means-empty/Fri, 07 December 2018 00:00:00 Match My House: The Match.com of the Property Market?Hannah Aistrophttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2018/december/match-my-house-the-matchcom-of-the-property-market/Match My House was founded by Wirral resident Dan Thomas following his negative experiences of estate agents when buying a number of houses over the years. He wanted to eliminate some of the stresses in the conveyancing process and also bring back some of the excitement into moving house. From as little as £30 you can subscribe to the site as a seller and create your profile, the rest works very much the same as a dating site but instead of matching with your perfect partner you chose to connect with the seller of a house you like. For potential buyers they can create a wishlist and let the sellers find them. You can then message via the app and arrange to view a house, ask questions and even accept/make offers. You also pay an additional fee as a seller to have your property advertised and highlighted as a featured property. It has been launched on the Wirral to start with but there are hopes that it will be launched throughout the rest of the UK in the future. The benefit of the site is that you can communicate with any potential buyer/seller 24/7 rather than being limited to office hours, so in essence ‘cutting out the middle man’. The service can be used alongside an estate agents or you can use solely the site to advertise and sell your property, eliminating the need for an estate agents and making potential savings on agent’s fees of 1000s. However, some sellers/buyers will prefer to stick with estate agents as they can do all the chasing for them and they also have the ability to liaise with the Seller’s Solicitors and Buyer’s Solicitors which can provide a good ‘go between’. So is Match My House the future of the Property Market or is this idea best left to the dating world? Like with everything, you will always have some people who like to do things ‘old school’ and will stick with estate agents but there will also be people who want to embrace change and will welcome the thought of taking more control alongside saving money.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2018/december/match-my-house-the-matchcom-of-the-property-market/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2018/december/match-my-house-the-matchcom-of-the-property-market/Mon, 03 December 2018 00:00:00 And Cut! But is it a Wrap?Jasper Dawsonhttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2018/november/and-cut!-but-is-it-a-wrap/High Street Chain Supercuts, owned by Regis has asked for some help from the landlords of its shops for free rent as part of a rescue plan. According to the Guardian “ The group has asked for rent reductions of 25-100% at 110 of its 220 salons. Regis warned that if the plan is not approved by creditors then it was likely it would enter administration.” Grant Thornton are assisting the company with a procedure known as a Company Voluntary Arrangement. Jackie Lang, the managing director of Regis UK, said: “This action has been taken to restructure our costs to ultimately enable reinvestment into the business to improve our digital platforms and our expertise in-salon. If successful, over 90% of our creditors will be unaffected.” But why are the company in so much trouble. Everybody needs a haircut and you can’t get this on the Internet, so the company can hardly be a victim of the so called “Amazon Effect” Is it because their expenses are too high in the first place? Your local independent barber doesn’t seem to be having the same problems. Is it because most of these shops operate from shopping precincts where the surrounding units are now empty so the passing trade has dropped? The Guardian says “The CVA is the latest of a string of similar cost-cutting plans in the struggling retail sector that have led to hundreds of store closures across UK high streets and shopping centres this year. Carpetright, Mothercare and New Look have used CVAs to get rid of unwanted stores, while Toys R Us and House of Fraser tried CVAs before going into administration.” The rescue operation should work if the company and those advising them have their sums right. Although the Landlords will not find the request particularly palatable they won’t have much of an option in what is very much a Tenants market. But this is simply a short term plan. All tenants no matter if they are a small independent or a large enterprise should carefully consider their business plan when entering into new leases in the first place and ensure they get good legal advice when considering the term of the lease, the rent and rent reviews and any break clauses as an exit strategy to ensure the business can deal with a trade downturn. It seems supercuts may soon be trimming salons as well as trimming hair!http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2018/november/and-cut!-but-is-it-a-wrap/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2018/november/and-cut!-but-is-it-a-wrap/Fri, 02 November 2018 00:00:00 First Time Buyer Stamp Duty ChangesHannah Aistrophttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2018/october/first-time-buyer-stamp-duty-changes/In November last year the Government introduced stamp duty changes which meant first time buyers spending £300,000 or less on a purchase would not have to pay stamp duty (first time purchases between £300,000 and £500,000 would only pay stamp duty on anything over £300,000). This was done in the hope that more first time buyers, the most struggling in the property market, would be able to get onto the property ladder. Theresa May predicted that more than a million first time buyers would benefit from the changes over the next five years with the maximum saving being £5000. So, nearly a year on has this made a difference to the first time buyers market? Well the figures do show that the number of first time buyers in Britain is at a 12 year high. According to recent data published by Halifax, applications by first time buyers now make up 51% of all mortgage applications which is the highest it has been for more than a decade despite the average deposit currently standing at a staggering £33,127.00! But the question is, can we really put this down to the Stamp Duty changes or are there other factors involved when the number of first time buyers has been consistently rising for the last five years? One factor could be that we are seeing more and more parents and grandparents financially helping first time buyers get on to the property ladder. Figures from the Office for National Statistics show that more than a third of first time buyers receive financial assistance from parents either by way of gift or loan. There is also the uncertainty of Brexit which is driving houses prices down, perhaps first time buyers are seizing the opportunity whilst they can. So in reality it is hard to say whether the stamp duty changes have made a difference. One thing is for sure though, stamp duty is one of the biggest disbursements when purchasing a house and any savings you can make at this time are welcome. As the saying goes ‘every little helps’.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2018/october/first-time-buyer-stamp-duty-changes/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2018/october/first-time-buyer-stamp-duty-changes/Fri, 26 October 2018 00:00:00 Marriage or Civil Partnership?Paul Hunthttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2018/october/marriage-or-civil-partnership/The Government has announced that it intends to bring about a change in the law to enable heterosexual couples to choose to enter into a civil partnership rather than to be married. It will be remembered that a high profile case that went to the Supreme Court earlier this year ruled that a restriction of civil partnership to same sex couples was incompatible with the European Convention on Human Rights. It was therefore not unexpected that formal changes in the law would be contemplated as a result of that ruling. The concept of civil partnership was originally introduced to enable same sex couples to formalise a relationship and was something of a stop gap measure at the time which stopped short of providing for same sex marriages. Same sex marriages have of course subsequently come along and from one point of view, one might think that civil partnerships would become a historical footnote. This has in fact happened in some other countries. However, opposite sex couples have also expressed a wish to chose civil partnerships rather than marriage for a variety of reasons – both legal and cultural. It seems illogical that one option should be available to same sex couples but not to heterosexual couples, even if it was an option that was originally perceived as a compromise measure. It may be that some heterosexual couples will opt for a civil partnership, not as an alternative to marriage, but as an alternative to cohabitation, a status which confers no legal obligations, rights or responsibilities at all. At the end of a cohabitation relationship there can be serious difficulties and injustices, the Court lacking any discretion to be able to divide assets, though there is a counter argument that those who wanted to have enforceable rights at the end of a relationship should have entered into a legal relationship , i.e. marriage. It is important that anyone entering into a civil partnership should understand that this is not ‘marriage lite’ and breakdown of a civil partnership carries the same consequences as the breakdown of a marriage in the terms of the powers of the Court to make provision for financial remedies orders to divide assets between the parties and provide for pension sharing where appropriate. It is also worth noting that civil partnership may not necessarily be recognised in all countries between same sex or opposite sex couples. Indeed, some countries have actually abandoned civil partnerships upon introducing same sex marriages.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2018/october/marriage-or-civil-partnership/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2018/october/marriage-or-civil-partnership/Fri, 19 October 2018 00:00:00 No More Adultery?Paul Hunthttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2018/october/no-more-adultery/Recently we all became aware of leaked information regarding a planned consultation by the government to change the longstanding law in relation to the grounds for divorce. More recently still, that position has now been made official and the Justice Minister has confirmed that there will now be a public consultation running to 10 December so that all interested parties can express their views. As will be well known, it is still 1973 so far as divorce grounds are concerned. There is one basis for divorce, and that is that the marriage has irretrievably broken down, but the routes for proving the same have remained unchanged – they are: (a) Adultery; (b) “Unreasonable behaviour”; (c) Desertion for 2 years or more; (d) Separation with 2 years or more when the other party consents to a divorce; (e) Separation for 5 years or more. In the case of same sex marriage or civil partnership dissolution, this has been exactly the same except the adultery basis is deleted. It had been argued for some time that the need to set out allegations against the other party as part of the mechanism for getting divorced is counterproductive and creates acrimony when it need not exist. While petitions based on adultery at least point towards an agreed factual position (and for the most part we have given up in naming co-respondent’s) allegations of unreasonable behaviour can be very contentious. The practice in recent times has been to keep such allegations to a minimum, but there is of course the danger of going the other-way and filing a petition that does not, in fact, contain sufficient particulars of unreasonable behaviour to satisfy the court that it has been proven that the marriage has broken down on that basis. I have yet to meet anyone who is the respondent in proceeding and who has brought into the office a petition based on unreasonable behaviour, who indicates quite clearly that the allegations are entirely accurate and are admitted. Hindsight can play a great part in putting together allegations that may not have been a major issue at the time and inevitably resentment is caused when these are seen set down on paper. The government is therefore going to consult at looking at alternative means for ending marriages and it is the expectation that they will be looking to move away from fault-based divorces and replace it with a process which whilst still part of a legal procedure will be less contentious. There are, of course, contrary views. There will be many who say that “divorce is too easy” and that divorce should not simply be available on demand without, as a matter of public policy, providing some sort of justification as to why the marriage should be brought to an end. So what might we get instead? I suspect that the answer will be something not unlike the provisions that were to have been brought in by Part 1 of the Family Law Act 1996, which was never implemented and ultimately repealed. That provided for a system whereby one party gives a formal notice of a wish to end the marriage and there was to be a fixed timescale in place to provide for “a period of reflection” before moving on. I recall that that period of reflection was required to be longer if there were children involved. My impression at the time was that while that proposed system dispensed with controversial allegations, it did not make matters necessarily easier and certainly not quicker. It remains to be seen therefore what proposed new arrangement emerges as a result of the public consultation. There are, however, many other issues which cause tension and difficulty between separating spouses, whether it be in relation to arrangements for the children or how assets are to be divided. The initial approach ought to be to encourage a cooperative and non-hostile approach, but this is not well served by having at the outset to ask client to provide details of what they say the other party has done wrong during the course of the marriage. It does follow from what is being suggested that there will no longer be any such thing as a defended divorce and it will therefore be primarily a matter of stating the intention and waiting for the appropriate time to elapse. It will be recalled that the issue of the grounds for divorce was brought into sharp relief recently by the high publicity case of Owens –v- Owens for a defended divorce, and the issue of whether the unreasonable behaviour particulars were sufficient, which was before the Supreme Court. As I have said, this is a public consultation. It is not legislation that is before Parliament debate and it will very much depend whether there is political will on the part of the government to push forward with this.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2018/october/no-more-adultery/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2018/october/no-more-adultery/Mon, 15 October 2018 00:00:00 Is it “another one bites the dust” on the high street?Lisa Evanshttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2018/september/is-it-“another-one-bites-the-dust”-on-the-high-street/When it comes to shopping it’s a thing I would contemplate including on my CV as a pastime. I love it whether it be online, on the high street you name it. There’s nothing better than wondering round one of the big department stores on your day off no kids bothering you no disgruntled partner just a coffee, my phone and my purse. I fear that this will soon be a thing of the past as major retailers Debenhams now assures investors over claims of store closures. Tight budgets, no spare cash, online shopping cheaper alternatives, and general decline on the high street have all been blamed for the downturn. Of course most people were saddened when they heard House of Fraser went into administration earlier in the year and the mass job losses. There is also a huge knock on effect for the landlords of the vast commercial property spaces these once high street greats occupied. These types of commercial spaces are so big and dilapidated they are just left grey and neglected and worst of all for the landlords vacant. This in turn has a huge knock on effect for all surrounding locals businesses and the smaller landlords with smaller premises surrounding these large vacant premises. It forces rent down and landlords are forced to accept grossly unfavourable terms with tenants just so their property is not left vacant too. Therefore some would say it’s a Tenants market, but I beg to differ, even if you manage to negotiate low rates and favourable terms with desperate landlords it’s still a big gamble for a new business and could prove costly, disastrous in some cases. A carefully negotiated deal needs well documenting with a clear documented get out clause. Here’s hoping that it’s all speculation and minimum store closures certainly for the likes of Debenhams who are now battling with mass business rates amongst other increases in operations costs and that they won’t be the next victim.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2018/september/is-it-“another-one-bites-the-dust”-on-the-high-street/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2018/september/is-it-“another-one-bites-the-dust”-on-the-high-street/Wed, 26 September 2018 00:00:00 Unreasonable Behaviour?Paul Hunthttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2018/august/unreasonable-behaviour/The much awaited Supreme Court judgment in the case of Owens &amp; Owens has now been publicised and has generated a lot of interest in the media. What has happened is that the Court has simply reaffirmed the law in relation to the basis for divorce as originally set out in the Matrimonial Causes Act. While it is common to describe divorce petitions based on behaviour as “unreasonable behaviour”, the full basis as set out in the Act is “The respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent”. In recent times the practice has arisen of seeking to avoid unnecessary acrimony by restricting the particulars of “unreasonable behaviour “within divorce petition to typically half a dozen bullet points. The vast majority of divorces are not defended. Assuming there is sufficient material within the particulars, the petitioner is unlikely to encounter any difficulties when applying to the court for consideration of the petition and the fixing of a date for pronouncement of the decree nisi. In a few cases divorce petitions are defended. The occasions are few because it is often accepted by the respondent that the marriage is at an end, even though there might well be disagreement as to the reasons for the breakdown of the marriage. The divorce petition can only tell one side of a story and invariably the respondent will say that the allegations contained are either not true or are exaggerated, or have been made into issues with the benefit of hindsight. Typically the respondent will agree not to defend the petition on the basis that he or she reserves the right to dispute the allegations should they be raised in any other context, for example in relation to children or financial matters. In the Owens case the divorce petition was defended and at the trial of the defended petition the Judge took the view that Mrs Owens had failed to prove a case for “unreasonable behaviour” and declined to grant a decree nisi. The case has found its way up to the Supreme Court and the Court has, apparently with some misgivings, upheld the original decision to refuse a decree. It is a reminder that it is still necessary for a petitioner who is seeking to rely on unreasonable behaviour to demonstrate to the court that there are sufficient particulars or allegations that justify this. A general statement of unhappiness or growing apart will not suffice and indeed if a petition is too blandly expressed, it may avoid animosity; but on the other hand, it will not result in the granting of a decree, even if the petition is undefended. In practical terms it means that Mrs Owens has no option other than to wait until the parties have been married for five years (I understand there is another two years to go). She will then be able to file a further divorce petition based upon the fact that the parties have been living separate and apart for five years. This is the only fact that she will be required to prove and the court will not be given any details as to the reason for the marriage break down or any allegations of behaviour. There are two possible outcomes from this decision: (1) Firstly, the decision strengthens the hand of those who argue that it is time that we moved on to a system for divorce that is not based on fault. This almost happened in the 1990s. Part I of the Family Law Act 1996 which was to have introduced a wholly no fault system was never implemented and was ultimately repealed. It is argued that resorting to petitions based on fault (where the necessary periods of separation are not there) only serves to increase acrimony. Whether or not there is any change in the law remains to be seen and in the current climate in which politicians seem to be almost exclusively focussed on Brexit, it is not going to be the top of anybody’s list. It should also be borne in mind that there are many people who will not necessarily want that change in the law to come about and will feel that marriage is important and should be upheld, and if it is to be dissolved then it should be necessary to show, as a matter of public policy, that there was a good reason for it. (2) The second likely outcome is a possible change in the way that under the current law petitions based on unreasonable behaviour are drafted, and how respondents deal with these when they receive them. There is a possibility that respondents may derive encouragement from the case of Owens &amp; Owens to defend petitions. Anyone committing themselves to defended proceedings needs to think very carefully as to what they are seeking to achieve by doing this. Either there was a genuine feeling that the marriage can be saved, or there can be a wish to thwart the wishes of the separated spouse, or to block the point at which the court can make decisions about financial issues given that the court has no jurisdiction to make orders of that kind until there has been a decree nisi pronounced. Defending a divorce is a purely tactical move and can be an expensive process because if the outcome were still to be the granting of a decree, the petitioner would be able to claim their costs from the respondent which will be so much greater if there had to be a full trial. Those who are drafting divorce petitions may take a more aggressive view as to what particulars of unreasonable behaviour ought to be included. We may see a move away from the practice of using minimalist particulars and may instead draft petitions (as we used to do in the past) with one eye on a possible defence and the particulars having to withstand scrutiny and challenge of the court by the other party. It would be a very unfortunate side effect of this case if we start to see petitions that appear more “bullish” in their contents.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2018/august/unreasonable-behaviour/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2018/august/unreasonable-behaviour/Thu, 23 August 2018 00:00:00 No More Meal TicketsPaul Hunthttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2018/april/no-more-meal-tickets/In a recent high profile case, the court made a decision as to the continuation of “spousal maintenance” (in other words financial support between the adults as distinct from child support) this would suggest that the court is taking more of a hard line view on these matters. When I first began to practice (some 30 years ago) where there was a spousal maintenance order in existence, even if it was only a nominal order of 5p per year, it was virtually given that this would be during the joint lives of the parties or until the recipient remarried. In more recent times, the court has been inclined to see whether a clean break can be achieved by dispensing with spousal maintenance and perhaps offsetting this against the division of capital. There is more of an expectation that parties should seek to support themselves post divorce at an expectation of indefinite support. In this present case, the parties had divided their capital at the time of the divorce and the husband had been reordered to pay the wife £175,000.00 per annum maintenance (so hardly a typical case for most of us). The matter came back to court when the wife applied for an increase. This application seems to have backfired because the husband both opposed the application for an increase and challenged the basis of the original award. The decision of the Appeal Court was that the maintenance payment should stop in three years time rather than continuing during joint lives. The argument is often that a person who has a lifetime maintenance order has no incentive to get back into the workplace and support themselves. Long-term maintenance orders are often described disparagingly as a meal ticket for life. This can be an unhelpful phrase when there may genuine reasons for ongoing support beyond a couple of years post divorce. This is not a radical new direction; there have been several cases which have taken broadly the same approach. This may, however, represent significant signalling that this direction is continuing. The sort of case that is reported here, of course, is not remotely typical of what happens to most people when they are divorced and in this case, there were significant assets which were generating income/interest and which were providing significant sources of income for the wife irrespective of spousal maintenance. There may well, however, be cases where the ex-spouse has no realistic possibility of getting back into the workplace in any reasonable timeframe, for a variety of reasons, and ongoing support may be appropriate.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2018/april/no-more-meal-tickets/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2018/april/no-more-meal-tickets/Mon, 30 April 2018 00:00:00 Changes to the Law on Smacking ChildrenSarah Platthttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2018/january/changes-to-the-law-on-smacking-children/It has recently been revealed that there will be changes to the law on smacking children in some parts of the UK. This has lead to some discussion about what constitutes as smacking, what is the legal position and how this can impact parents. Smacking is considered by many parents and children’s charities to be an inappropriate punishment and the new changes could see parents in Scotland and Wales being penalised for smacking their children. It is illegal to hit a child, as it would be to hit anybody. There is however currently a ‘defence’ for parents or legal guardians when smacking children is considered ‘reasonable punishment’ under s.58 of the Children Act 2004. Reasonable punishment is not defined in the act and so it can be a grey area for parents. It is clear however that this will depend on each individual case and factors such as the age of a child and the nature of the strike are considered. New changes coming to Scotland and Wales would remove the defence of reasonable punishment and could see parents being prosecuted if they physically discipline their children. These new changes are strongly supported by the NCPSS who have said that “every child deserves equal protection under the law ... it is wrong that a defence, which does not exist in the case of common assault against an adult, can be used to justify striking a child’. Ultimately, the new changes in the law will not impact parents in England as the ‘defence’ of reasonable punishment will remain. However, parents who are travelling to Wales or Scotland will be subject to the changes once they have crossed the boarders. The use of physical punishment may also attract the attention of the Local Authority, irrespective of any availability of defence. This could result in Local Authority involvement with your family.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2018/january/changes-to-the-law-on-smacking-children/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2018/january/changes-to-the-law-on-smacking-children/Wed, 03 January 2018 12:00:00 All Change for Accelerated Possession Claims Danielle Hugheshttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2017/december/all-change-for-accelerated-possession-claims/The court forms for issuing a claim for possession of property under the accelerated possession procedure have now been amended to reflect the changes in legislation which came into place in October 2015. Given that the legislation does not currently apply to tenancy agreements entered into prior to 1 st October 2015, the “old” claim form can still be used in such cases, therefore landlords should take care when drafting any court documents to ensure that they are using the correct forms for their particular case. What’s new? The new court form specifically relates to properties located in England only. A separate claim form has been introduced for properties located in Wales. The new claim form for property in England requests a number of additional details, including a short statement detailing how, when and by whom any notice under Section 21 of the Housing Act 1988 notice was sent or delivered. The court requires further and more detailed information in regards to the protection of a tenancy deposit, including provision of the date on which the deposit was lodged with a government scheme (this should be within 30 days of receipt). The new claim form requests details of whether a valid Energy Performance Certificate has been given free of charge to the tenant and the date upon which this was given. The courts want to know whether and when a copy of the gas safety record was provided to the tenant, in addition to when and how the “How to rent” Checklist for renting in England booklet was provided to the tenant, including whether this was provided as a hard copy of by email. There is significantly more detail required with the new forms. Whilst it has taken quite some time for the courts to update the forms to reflect the current legislative position following the introduction of the new regulations in 2015, this demonstrates how the implications of the legislation are now beginning to have much more of a practical impact for landlords in seeking to recover possession of their properties. Interestingly there is now a section dedicated to “retaliation” evictions, including having to disclose whether the landlord has been served with a “Relevant Notice” from a local authority relating to the condition of the property following a complaint from the tenant. Indeed, a whole page of the claim form is dedicated to this point, including a request for further information and whether any exemptions may apply. As we approach 2018, when the legislation will apply to all tenancy agreements across the board, it is absolutely crucial now more than ever for all private landlords and letting agents to familiarise themselves with the additional requirements and ask themselves whether they are fully compliant. Failure to do so could prevent landlords from being able to secure possession of their property via the accelerated possession procedure.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2017/december/all-change-for-accelerated-possession-claims/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2017/december/all-change-for-accelerated-possession-claims/Tue, 12 December 2017 16:00:00 Universal Credit - Another Problem?Paul Hunthttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2017/december/universal-credit-another-problem/We have heard a lot in recent news about Universal Credits, mostly from the point of view of delay in implementing payments to new claimants. Something which has had rather less publicity is the effect that the transition from Universal Credits from other forms of benefit can have upon spousal maintenance, i.e. support payments made between the adults as distinct from child support. At the moment, spousal maintenance is not taken into account when assessing eligibility for tax credits which is a very important concession. That can lead therefore to the receipt of tax credits to be taken into account when looking at a person’s overall total income and assessing their needs as against the ability of the other spouse to meet those needs. However, that changes once a person is receiving Universal Credit. Spousal maintenance, if it is being received, is then deducted pound for pound from Universal Credit. Therefore, someone going from say purely tax credits to universal credit could suddenly find that their overall income could reduce significantly if the spousal maintenance is being taken into account. That might give rise to a change of circumstances that would justify an application to the court to increase spousal maintenance to try to make up for the loss of benefits. Obviously there will be many people who will not make a transition to Universal Credits for some time but they might be on it sooner than expected if, for example, they come off tax credits for whatever reason and then have to reapply. It is also worth noting that the restrictions on capital for Universal Credit are different and any capital under £6,000 is not taken into account, however, anything between £6,000 and £16,000 is deemed to be an asset which produces an income of £4.35 for every £250.00 of capital whether or not an income is actually received. Therefore, having capital up to the top limit of £16,000 is treated as generating an income regardless of whether or not you actually receive it. The main residence, business assets and pensions will not count towards capital assets. Any other savings would do so.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2017/december/universal-credit-another-problem/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2017/december/universal-credit-another-problem/Tue, 12 December 2017 16:00:00 Conversations to Have with Your ParentsClaire Curriehttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2017/november/conversations-to-have-with-your-parents/As a private client solicitor, I see people from all walks of life who realise the importance of making plans for the future. There remains, however, one group of individuals who appear to feel disconnected from the problems that older age can bring; The Young. Anecdotal evidence points to the fact that anxieties over Brexit, an ever-widening gap between house prices and salaries, and a belief that there’s no point planning for an uncertain future are leading to an avoidance by 20, 30 and 40-somethings of making vital long-term plans. While the younger generation may choose to put off preparing their own contingency plans, it is so important that they are up to speed with those of their parents. Those that fail to have ‘the chat’ run the risk of being unable to ensure their parents’ wishes are carried out as they would want them to be at a later date. Fortunately, the Christmas period tends to offer plenty of opportunity to catch up with our loved ones. With that in mind, I’ve pulled together a list of suggested conversations you might want to raise with your parents: 1) Have you made plans for your future? Never an easy question to ask, so it might help by explaining to your parents that you’ve been considering your own plans, and wondered if they had been through that process. They might actually be relieved that you’ve raised the topic. 2) What legal documents have you made? If a will is not worded or executed correctly – a process that should be overseen by a specialist solicitor – it can lead to problems at a later date. Also, wills only cover what happens when somebodies dies and not what would happen if they became mentally incapacitated and their affairs needed dealing with. In cases such as those, without a power of attorney, even joint bank accounts could be frozen, causing huge problems for the person left behind. 3) Who are the key people we should know of? Solicitors, financial advisors and accountants are just some of the professionals your parents may have dealt with in relation to the handling of their financial and medical affairs. Ask your parents for a copy of their names and contact details. 4) Where can we find your legal, financial and insurance documents? Should the worst happen, you’d need to know where important documents such as wills, Deeds and bank statements are kept. Discussing this now means an easier task later. . 5) How do you feel about care homes ? While not a move most people actively want to make, sometimes a move into a care home is the best option for all concerned. Take the time to discuss how your parents would feel, should this situation unfold. You might be surprised at their response. 6) At what point would you want medical treatment to be withdrawn? Without a health and welfare power of attorney , relatives have no overriding power to make decisions as to whether medical treatment continues, but often doctors will discuss it with them. Although a particularly difficult conversation to have, it is one, nonetheless, which needs to take place. 7) What are your funeral wishes? Arranging a funeral can be difficult if you do not know what your loved one’s wishes were. Often people are very clear as to whether they want to be cremated or buried but the finer details such as hymns or songs are seldom discussed. As Featured In: SFEhttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2017/november/conversations-to-have-with-your-parents/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2017/november/conversations-to-have-with-your-parents/Mon, 27 November 2017 10:00:00 Leak Sheds Light on Criminal Finances ActThomas Hanlonhttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2017/november/leak-sheds-light-on-criminal-finances-act/The ‘Paradise papers’ revelations have once again placed a spotlight on the world of offshore finance and the use of complex structures to shield cash away from higher taxes. Whilst the media swoop in on the high profile celebrities exposed in the leaked papers, the companies who provide the financial advisory services to them also face public scrutiny. For these organisations it is imperative that procedures are put in place that prevent employees, agents or individuals on behalf of the company to facilitate those who deliberately, or dishonestly, commit tax evasion. Earlier this year, new offences came into force which can now hold companies liable if they fail to prevent the criminal facilitation of tax evasion. Section 45 of the Criminal Finances Act 2017 creates an offence whereby a relevant body commits a UK tax evasion offence when acting in the capacity of a person associated with the relevant body. A ‘relevant body’ in this instance means a body corporate or a partnership, either incorporated or formed. A company convicted of this offence can appear before the Magistrates’ or the Crown court depending on the value of the tax evasion and be sentenced to an unlimited fine. It is a defence for a company to show that it had adequate procedures in place to prevent the facilitation offence. HM Revenue and Customs (HMRC) have issued guidance principles for this new offence. The following is not an exhaustive list, but can help a company ensure that it has taken adequate steps to put protective measures in place; 1. Risk assessment Implement procedures that will manage the exposure all employees, agents and those performing services for company have to tax evasion. For example, this could include further training, due diligence procedures or consideration of the relevant guidelines from Financial Conduct Authority (FCA), Law Societies Guidance on Anti-Money Laundering or other applicable regulatory guidelines on preventing financial crime. 2. Proportionality of risk-based prevention procedures This will depend on the size of the company and the risk that the company is exposed to for preventing the offence. The nature and complexity of the service provided may also affect proportionality of the risk prevention procedures. When considering proportionality, risk factors may include; Opportunity. Could someone facilitate tax evasion? Motive. Why could it happen? Means. How could it be done? Consideration of these factors may indicate the level of proportionality in the procedures implemented. 3. Top level commitment Top level management of a company (‘relevant body’) should foster a culture in which the criminal facilitation of tax evasion is never acceptable. For example. this could include members of senior management having designated responsibilities in preventative measures. 4. Due diligence Apply procedures which minimise the risk of exposing the company to the criminal facilitation of tax evasion. 5. Communication Ensure all policies and procedures are communicated and understood throughout the company. Further training could be provided to employees on seeking advice or reporting suspicious activity of tax evasion or wider financial crime. 6. Monitoring and review A company should continually monitor its preventative procedures and, where necessary, make improvements.. Financial Crime is forever evolving therefore it is crucial that regular reviews are undertaken. In addition to the above, the guidance also deals with an approach on self reporting any acts of tax evasion it has discovered. An individual authorised by the company has the facility to report evasion activity to HMRC. Crucially, although encouraged, self reporting does not guarantee that the company will not be prosecuted. It may be considered when there is a decision to prosecute, form part of a defence if the company is prosecuted, or form part of the mitigation to reduce and minimise the fine imposed if the matter proceeds to sentence. With the ever increasing impact on the world economy, governments are intensifying their response to financial crime, which in turn means that the law making authorities are engaged in a reactive process. Companies must be aware of the law and comply with it – those who don’t face suffering significant financial and reputational damage which can be irreversible. Given the complexities of financial crime, seeking the expertise of a specialist legal team is imperative.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2017/november/leak-sheds-light-on-criminal-finances-act/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2017/november/leak-sheds-light-on-criminal-finances-act/Tue, 21 November 2017 15:00:00 What are Restricted Covenants?Lindsey Knowleshttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2017/november/what-are-restricted-covenants/Restrictive covenants are essentially contractual clauses which restrain an employee from undertaking certain actions upon termination of employment. These restrictions are generally designed to protect the employer’s business by preventing the employee from competing with, or otherwise negatively affecting the employer’s business, for example by poaching clients. These clauses are often found in the contracts of senior employees that have close working relationships with clients or maybe in possession of confidential information or trade secrets. There are several types of restrictive covenants 1. Confidentiality A confidentiality clause imposes a duty on the employee to preventing the use or disclosure of genuine confidential information (which should be defined) both during and after employment. 2. Non-solicitation This clause restricts employees from approaching the ex-employer’s clients or prospective customers. 3. Non-competition Clauses which prevent the employee from setting up in competition to the ex-employer, or from working for a competing business. 4. Non-poaching This clause prevents the employee from recruiting the ex-employer’s staff. 5. Non-dealing This clause is similar to the non-solicitation clause, however it has a much broader scope, and prevents an employee from dealing with clients or potential customer’s of the ex-employer in any way, even if the client makes the first approach. How enforceable are restricted covenants? In order to enforce a restrictive covenant, an employer must be able to show that the clause is; • Reasonable; • Necessary to protect a legitimate business interest, such as trade secrets, client relationships, or the stability of the workforce; • Of a justifiable duration and geographical area. For example, a clause which prevents an employee from working for a competing business for a period of two years, anywhere in the country would be unlawful, as it would be an onerous restriction on the employee’s ability to obtain new employment. However, a six month restriction on an employer working for a competitor within a specific town is likely to be enforceable. In certain circumstances, if a clause contains a mixture of unenforceable and enforceable elements, the court may choose to delete the unenforceable elements, so long as this would not require modifying the remaining wording. Example: “The employee covenants with the Company that, for a period of six calendar months following termination of their employment, they will not be involved in any capacity with any business concern that is carried on within Merseyside, or anywhere in the UK, which is, or intends to be in competition with the Company.” In the above example, the words “anywhere in the UK” render the clause too broad in application, and therefore unenforceable. However, if the Court were to delete these words, then the remainder of the clause would still make sense without rewording or amendment, and may therefore be enforceable. Whilst restricted covenants can help to protect business interests, their existence in employment contacts does not deem them automatically enforceable. Remedies for Breach If you believe that an employee has breached a restrictive covenant, then you may be able to apply for an injunction, and put an immediate stop to the employee’s actions. The court will usually grant an interlocutory injection pending a full trial at which all the evidence will be considered. An injunction will only be granted if the court is satisfied that there is a case to answer, and that the claim in not vexatious. The court will also look at the “balance of convenience” by weighing up the damage suffered by the employer if the injunction is not granted, against the damage or inconvenience suffered by the employee if it is. In addition, the court will also consider whether the damage could be sufficiently remedied through compensation, and whether the employee would have the means to pay the compensation. In order to claim damages for a breach of a restrictive covenant, it is necessary to demonstrate a loss resulting from the breach, which may include loss of opportunity. Guiding You on Your Legal Journey Kirwans Employment Law team are on hand to guide you through the complexities of contracts of employment. For business clients we can help to ensure your business is protected and advise on any issues regarding restrictive covenants and likewise we can advise you and defend any claims against your business from ex-employers of new employees of your business being accused of working for your business in breach of restrictive covenants. For individuals we can advise you on the enforceability of any restrictive covenants and your options.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2017/november/what-are-restricted-covenants/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2017/november/what-are-restricted-covenants/Thu, 09 November 2017 00:00:00 ‘Informal chat’ that could lead to wrongful convictionAmanda Yorkhttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2017/october/‘informal-chat’-that-could-lead-to-wrongful-conviction/Individuals are falling victim to a legal loophole which allows them to be interviewed by police in their own home about potentially serious offences in the belief that they are simply having a chat. A growing trend is seeing people being asked to participate in voluntary interviews at home, a place of work, or a police station, without a clear understanding that the conversation can be used to build a case against them and could adversely affect a suspect’s defence. Budget cuts, low staffing levels and custody suite closures have all contributed to the rise of voluntary interview requests. It is becoming increasingly common for the police to invite individuals to have a friendly chat, whether at the police station, in their own home, or elsewhere, about allegations. But despite the fact that anyone having a ‘chat’ with a police officer should be cautioned, not everyone realises that whatever is said in a voluntary interview can be used in evidence if the case proceeds to court. If conducted in a person’s home, the interview won’t necessarily be recorded, but the Police may decide to take ‘contemporaneous notes’ instead, which the person being interviewed will be asked to read and sign. The legal sector has long voiced its concerns in industry circles over the increasing move towards voluntary interviews rather than the traditional arrest and interview at the police station. Squeezed policing budgets have led to voluntary interviews – which require less staff resource and cell space than holding an individual under arrest - taking on a greater prominence as a more cost-effective alternative. However, many people don’t understand the repercussions of what can appear to be an informal chat and may answer questions less thoughtfully while in the comfort of their own home. Often people will attend a voluntary interview and speak freely with the police without obtaining free legal advice, safe in the knowledge of their innocence. However, even those who don’t believe they have committed a crime can land themselves in hot water without seeking specialist legal advice. Some people may remember a case earlier this year of a woman who was identified via CCTV of picking up a £20 note that she had found on a display in a shop and asked to attend a voluntary interview. During the interview, which she attended without a solicitor, she denied taking the money; a move which led to the case proceeding to court where she received a conditional discharge, court costs and a criminal record for a dishonest offence. Had the woman asked for legal representation at the outset, she would have been properly guided through the interview process and the outcome would probably have been a caution at the police station rather than a court hearing. Her case provides a clear example of how seeking legal advice from the outset can help to manage any potential complexities if matters escalate. Voluntary interviews – key points to know: 1) No matter how relaxed an invite to a voluntary interview might seem, individuals must still be cautioned, informed that they are not under arrest, are entitled to free legal representation, and may leave at any time; 2) That said, depending on how the conversation develops, an arrest may follow; 3) On being invited for a voluntary interview, the person concerned should contact a solicitor – no matter how inconvenient it appears to be for the police officer. Solicitors can obtain disclosure from the police before their client is interviewed, so are usually aware of the strength of the evidence in the case and can advise their client accordingly; 4) If an individual refuses to attend a voluntary interview, they may then be arrested and interviewed anyway; 5) A child or vulnerable adult should never be interviewed without an appropriate adult present; a parent, guardian, social worker, or a responsible adult over the age of 18.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2017/october/‘informal-chat’-that-could-lead-to-wrongful-conviction/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2017/october/‘informal-chat’-that-could-lead-to-wrongful-conviction/Wed, 11 October 2017 00:00:00 Kirwans Team “sleep-out” to support homeless charity Danielle Hugheshttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2017/october/kirwans-team-“sleep-out”-to-support-homeless-charity/‘People need to open their minds more and put themselves in the position of a homeless person.’ [The Whitechapel Centre]. That’s exactly what a team of 300 volunteers will be doing on Friday 13th October 2017 as we give up the warmth and comfort of our homes to sleep-out on the streets of Liverpool, all to raise awareness, and funds, for the city’s homeless charity, The Whitechapel Centre. I’ll be joined by two members of our charity committee – Annie Slade and Laura O’Farrell – to participate in the event, which is taking place outdoors and fully exposed to the elements. Of course we appreciate that this experience, whilst a challenge, will be anything but authentic, we’ll have great support and a team atmosphere – and all safe in the knowledge that we’ll be able to head back home for a hot shower and warm food. A far cry from the reality for those who sadly find themselves homeless. So why are we sleeping out? Homelessness is a huge problem in Liverpool. This event is aimed to raise funds and awareness for the fantastic work of the Whitechapel Centre, who last year helped 1,321 homeless people into new accommodation; ending homelessness for them. All funds raised will go directly to the centre, which is our Charity of the Year 2017. The Whitechapel runs an Enablement Centre which our team visited earlier this year. We saw first- hand the profound impact that this centre has for homeless people, offering them a hot meal, shower and clothes washing facilities. The statistics speak for themselves: Beyond the amenities offered, the charity has a bank of supporters to help people on their route out of homelessness. This can include housing and welfare rights advice, education, training, employment advice, volunteering opportunities and medical services. During the winter The Whitechapel Centre also operates the Cold Weather Provision for rough sleepers, opening when the temperature is predicted at 2°C or less. It offers a warm and safe place to stay overnight; hot food, drinks and a change of clothing. There is no other support of this type for homeless people across Liverpool. The centre relies on the donations of the community (which can be food, clothes and volunteer time as well as money). Please see below their website for details on success stories and how to help the Charity, along with our Sleepover Team Fundraising page:- • www.whitechapelcentre.co.uk • https://www.justgiving.com/fundraising/kirwanssleepoverteamhttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2017/october/kirwans-team-“sleep-out”-to-support-homeless-charity/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2017/october/kirwans-team-“sleep-out”-to-support-homeless-charity/Tue, 10 October 2017 00:00:00 New Pre-Action Protocol for Debt Claims Michael Howarthhttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2017/september/new-pre-action-protocol-for-debt-claims/In recent years the law has evolved in a way which encourages parties to resolve their disputes without the need for court proceedings. Pre-Action Protocols provide guidance as to the conduct expected from the parties prior to a claim being issued and failure to comply with the Protocols can have costs consequences for those in breach. What’s new? A new Pre-Action Protocol for Debt Claims, which will apply to any business claiming payment of a debt from an individual, will come into force on 1 October 2017. Although the Protocol will not apply to business to business debts, it is important that businesses still aim to comply with the existing Practice Direction for Pre-Action Conduct when claiming payment of a debt from another business. How it works Before starting a claim, the business pursuing the debt should send a formal Letter of Claim to the individual in order to provide them with a chance to settle the matter. The new Pre-Action Protocol for Debt Claims sets out the information that must be included within the Letter of Claim and lists the documents that should be sent with the letter. The new Protocol aims to encourage early engagement and communication between the parties, including the early exchange of information, which may help to resolve the matter without the need to start court proceedings. Creditors will be expected to provide details of the debt in the Letter of Claim, including; • The amount owing; • How it was incurred; and • Whether any interest or additional charges apply. An Information Sheet and Reply Form should be enclosed with the letter, together with a Financial Statement. The Reply Form should be used by the debtor to provide their response, along with details of their income and expenditure in the Financial Statement if appropriate. Paragraph 3 of the new Protocol contains the full list of initial information to be provided by the creditor and the annexes contain suggested form versions of the Information Sheet, Reply Form and Financial Statement. The new Protocol also introduces additional timescales that a creditor must comply with in order to avoid cost penalties. For instance, proceedings should not be issued until 30 days after the later of the date of the Letter of Claim or the receipt of the debtor’s Reply Form. If the debtor responds to the Letter of Claim but no agreement can be reached, the creditor should provide the debtor with at least 14 days notice of their intention to start proceedings unless there are exceptional circumstances requiring urgent action. There will be an onus on the parties to try to reach an agreement for the debt to be paid by instalments when additional time to pay is requested and a reasonable period of time should be allowed for the debtor to seek any required advice. Debtors will also be able to request relevant documents held by the creditor that were not provided with the Letter of Claim. Frustratingly for creditors, compliance with these increased requirements can significantly delay the recovery of a debt and existing recovery processes may need to be reconsidered to ensure compliance with the new Protocol. Going to court should be viewed as the last resort but compliance with Pre-Action Protocols demonstrates that a party has made sufficient attempts to resolve the dispute before commencing proceedings. Don’t run the risk! Any business seeking to recover a debt from an individual from 1 October 2017 should ensure that they are compliant with the new Pre-Action Protocol for Debt Claims. Businesses that start claims in breach of the new Protocol run the risk that the court might decide that they are not entitled to recover their costs or that they must pay the other party’s costs despite winning the claim. The court also has the power to prevent a creditor from recovering interest or to order recovery at a reduced rate. It is also important to note that the collection of debts could be further delayed if proceedings are stayed to remedy compliance issues. Compliance with the new Protocol will undoubtedly be more onerous for creditors and will inevitably increase the time between sending a Letter of Claim and issuing court proceedings. However, patience and perseverance on the part of creditors will help to ensure that money that could potentially be recovered is not lost through cost penalties.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2017/september/new-pre-action-protocol-for-debt-claims/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2017/september/new-pre-action-protocol-for-debt-claims/Thu, 28 September 2017 00:00:00 The Lasting Powers of AttorneyJasper Dawsonhttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2017/august/the-lasting-powers-of-attorney/The dangers associated with Powers of Attorney have been in the news recently with the retirement of an eminent Judge Denzil Lush , who for years had been hearing cases in the Court of Protection. The featured news articles stress the risks of appointing an Attorney with the Judge himself stating that he would not sign one. In truth, the main reported victim was as a result of him making an Enduring Powers of Attorney (EPA) in 2003, which was easily misused. In 2007 the old EPA was superseded by a Lasting Powers of Attorney (LPA), which had far more stringent controls, although they have since been relaxed with the removal of the necessity to notify close friends or relatives of the appointment; which is now optional. The difficulty is that the alternative to granting an LPA is a period of total uncertainty after the elderly relative becomes unable to sign for him or herself and someone, usually a close relative but sometimes the Local Authority, has to apply to the Court of Protection to be appointed as a Deputy. This is a lengthy and very expensive process, with legal fees, court fees and fidelity insurance premiums. There is an ongoing requirement to submit annual accounts. The result is that whilst the elderly relatives’ assets are more secure, the delay in being able to settle debts, or to sort out financial arrangements generally, can be considerable. So what is the answer? Appoint an Attorney whom you can trust implicitly. I also recommend that you ensure others are notified of the appointment. If you only have friends, neighbours or more distant relatives then look to a qualified and trusted Solicitor with experience in this role. Whilst the administration of your affairs might be a little more expensive than if you appoint a relative, it is still likely to be cheaper than the Court of Protection and you are guaranteed safety as you are protected by the Solicitor’s Professional Indemnity insurance and a compensation fund should there be any act of negligence on their part. It’s important to remember that an LPA is a powerful document. Sometimes things aren’t as straightforward as we would hope, therefore any protective measures should still be firmly encouraged.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2017/august/the-lasting-powers-of-attorney/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2017/august/the-lasting-powers-of-attorney/Fri, 18 August 2017 00:00:00 Abolishment of Employment Tribunal FeesRebekah Lindemanhttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2017/august/abolishment-of-employment-tribunal-fees/In a landmark decision in R (Unison) v Lord Chancellor 2017, brought by trade union Unison, the Supreme Court have ruled that Employment Tribunal fees are unlawful, due to their effects on access to justice. The fees were initially introduced under the Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013. The Government’s intention was threefold, to shift the cost burden on the taxpayer to the actual users of the Tribunal service, to discourage vexatious claims, and to encourage earlier settlement of claims. However, although a drop in claims was expected, a recent government review has found that claims have actually fallen by 70 per cent since the imposition of fees. Unlike the civil courts, the fees were not correlated to the value of the claim, but to the complexity. Type A claims, generally for sums of money such as holiday pay and unpaid wages attracted the lowest level of fees; £160 to issue, and £250 for the hearing. More complex claims, such as unfair dismissal or discrimination cost £250 to issue and £950 for the hearing. A fee remission system ensured that those on low income were not required to pay the fees. However, although the Supreme Court took this in consideration, they found the income limit so low that even a couple earning only the national minimum wage would not be eligible for fee remission. The fees structure has drawn significant criticism from its very inception. The Discrimination Law Association argued that the imposition of fees disproportionately affected women and protected minorities who traditionally earn less, especially given that discrimination claims attracted the higher fee. Furthermore, as the fees were not proportionate to the value of the claim, in some situations a claim would be entirely futile, for example, an employee wishing to bring a holiday pay claim for £400 would be charged £390 in fees. In consideration of all the above, the Supreme Court ruled that the fees had proved an obstacle to justice, and were also in breach of the EU principle of effectiveness. Although the imposition of financial costs is at the discretion of member states, the Supreme Court considered that the fees were excessively high, disproportionate, and discriminatory. However, although reference was made to the EU principle of effectiveness, the Court relied primarily upon the ancient principles of English constitutional law. In his judgement, Lord Reed citied Magna Carta, “We will sell to no man, we will not deny or defer to any man either Justice or Right”, effectively ensuring the ruling was Brexit proof. As a result of this ruling, claimants will no longer be required to pay a fee to bring a claim, and will be entitled to reimbursement for fees already paid. The decision is likely to cost the government something in the region of £32 million. It is inevitable that the ruling will result in an increase in claimants attempting to seek a remedy from the Tribunal, and likely an increase in low value claims. The ruling may also potentially lead to more litigants in person, who are unable to afford legal representation, and previously unable to afford the fees. Hopefully the decision will not cause employees to overlook the benefits of the ACAS conciliation service, or encourage parties to pursue an unnecessarily adversarial approach to resolving workplace disputes.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2017/august/abolishment-of-employment-tribunal-fees/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2017/august/abolishment-of-employment-tribunal-fees/Mon, 14 August 2017 00:00:00 “Turning Prisons into Powder Kegs”Amanda Yorkhttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2017/july/“turning-prisons-into-powder-kegs”/The Ministry of Justice (MOJ) has published the latest statistics detailing record levels of assaults and self-harm inside England and Wales prisons. Statistics have also emerged surrounding the number of prisoners who were “released in error” in 2016/17. Record levels of violence show that 26,643 assaults took place inside prisons between 2016/17. Of those assaults, 7,159 were attacks on staff; a figure that has trebled since 2013. Whilst in custody, prisoners remain under the care of the Ministry of Justice. Some may ask then how 316 deaths were reported in 2016/17, 97 of which were prisoners committing suicide. Moreover, there were 40,414 incidents of self-harm in male and female prisons during the same period. Unsurprisingly, the Government is facing criticism and being accused of “turning prisons into powder kegs” due to the overcrowded, underfunded, shortage of staff prison regime. The MOJ has also released figures showing that in 2016/17, 71 prisoners were released in error. This worrying statistic is the highest figure since records began in 2006. The reason for such errors can vary from administrative “blunders” to “misplaced warrants for imprisonment” and “recall notices not being acted on”. Prisoners that are released “by accident” are not considered unlawfully at large, but they are pursued by the Police. However, it has been suggested that this is not always the case and whether or not the Police pursue them is dependent upon the circumstances. Interestingly, the statistics indicate that none of the most dangerous category of prisoner were released during this period. Perhaps because funding in the higher category establishments allow for less populated prisons and more prison officers? The increase in prisoners being released ‘in error’ is likely to have some correlation between Government budget cuts and the level of staffing currently inside prisons in England and Wales. Whilst the budget is very much declining, the rise in suicide/self-harm and violent attacks are increasing year by year. The Howard League for Penal Reform has stated that “overcrowding and staff shortages were driving a rising tide of violence, human misery [and] chaos.” Some have suggested that the Government has lost control of the prison regime which requires urgent attention. These figures are further evidence that Government cuts cannot continue. Not least because of the number of violent attacks or suicides but also to ensure that prison officers do not have to attend work in fear.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2017/july/“turning-prisons-into-powder-kegs”/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2017/july/“turning-prisons-into-powder-kegs”/Fri, 28 July 2017 00:00:00 Acid Attacks – The Full Force of the Law?Amanda Yorkhttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2017/july/acid-attacks-–-the-full-force-of-the-law/Just a fortnight ago six people were doused with corrosive liquid on London’s streets within 24 hours! In recent years there have been a record number of reports of acid attacks in England and Wales. In 2015, 261 acid attacks were reported to Police whilst in 2016, that figure rose to 458. Following the recent attacks, the Government has been called upon to introduce tougher legislation in efforts to combat this threat. Home Secretary, Amber Rudd, announced that a review will be undertaken into the current legislation and that attackers would “feel the full force of the law” in a bid to overhaul the current legislation. There has been a suggestion that legislation will be introduced to class corrosive substances, such as acid, as a “dangerous weapon”. In fact, the current law provides that carrying a corrosive substance in a “spray bottle” without lawful or reasonable excuse would already satisfy the offence of Possession of an Offensive Weapon contrary to section 1 of the Prevention of Crime Act 1953. This offence carries a maximum sentence of 4 years imprisonment. The Government may consider the introduction of licences, however; corrosive substances are household products that many of us buy on our weekly shop so enforcement would be challenging. Under section 18 of the Offences Against the Person Act 1861, a person who unlawfully and maliciously causes grievous bodily harm to another person with intent can be sentenced to life imprisonment. Therefore, acid attackers who intentionally carry and throw a corrosive substance at another person can currently face life imprisonment under the current legislation. In fact, a corrosive substance for sentencing purposes on a Section 18 offence would as above constitute use of a weapon which would aggravate any sentence imposed by the Court. The sentencing guidelines already afford the Court the power to impose a starting point of 12 years’ imprisonment with a range between 9 years and 16 years. Francis Fitzgibbon, QC chair of the Criminal Bar Association said; "Passing new laws alone cannot be guaranteed to eliminate crime, as criminals often react by changing the ways they commit offences,” and that "the capacity to enforce existing law is at least as important." The issue here is not necessarily with the law itself, but rather the underfunding of the Police and other agencies that have insufficient manpower to investigate the crime. Amber Rudd has also commented that the Government must “ensure that the Police and other emergency services are able to respond as effectively as possible, to both pursue offenders and give victims the immediate support that they need.” These changes would be welcomed but would require urgent funding. The law is set out and clear, acid attackers can face up to life imprisonment. A change in the law does not seem necessary unless there are to be introductions surrounding the licensing of carrying corrosive substances, in which case, how this is enforced and monitored would be a further challenge.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2017/july/acid-attacks-–-the-full-force-of-the-law/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2017/july/acid-attacks-–-the-full-force-of-the-law/Mon, 24 July 2017 00:00:00 Driving with a Dog in the CarFrank Rogers http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2017/june/driving-with-a-dog-in-the-car/Do you take your dog out in the car with you? Is the dog unrestrained? Did you know that this could mean that you are in breach of The Highway Code &amp; could be prosecuted for careless driving ? I thought not! If you own a dog you need to be familiar with the provisions of The Highway Code that govern transporting your dog by car. According to The Highway Code, drivers need to ensure dogs or other animals are suitably restrained so they cannot cause any potentially deadly distractions while you drive. Rule 57 of The Highway Code states “When in a vehicle make sure dogs or other animals are suitably restrained so they cannot distract you while you are driving or injure you, or themselves if you have to stop quickly." A seat belt harness, pet carrier, dog cage or dog guard are ways of restraining animals in cars. Although breaking The Highway Code might not result in a direct penalty, you could still be pulled over for driving without due care and attention - which carries a maximum fine of £2,500 as well as a total of up to nine penalty points on your licence. Drivers could even face a compulsory driving ban and, in certain circumstances, be forced to retake their test. As well as points and a fine for not properly restraining your pets, if an accident is caused, your insurance could be voided by this breach of The Highway Code. A lot of media coverage was given to the recent change in the sanctions the courts impose if you are caught using a hand held device while driving – you are now at risk of 6 Points if convicted of that offence. Police are also now more frequently charging drivers with an alternative offence of “not being control of the vehicle” where they have insufficient evidence to prove the device was being used. Now you need also to be aware that if you have an unrestrained dog in the car while you are driving you could be charged with driving without due care and attention which could result in your licence being endorsed with up to nine points. A conviction for careless driving could see you reach or, get close to 12 points when, in the absence of a successful exceptional hardship argument, you would be at risk of a six-month driving ban.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2017/june/driving-with-a-dog-in-the-car/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2017/june/driving-with-a-dog-in-the-car/Mon, 12 June 2017 00:00:00 Before you say “I do”Hannah Bibbyhttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2017/june/before-you-say-“i-do”/Hear the term " prenup " and it may just conjure up images of A-list celebrities, star-studded weddings - or their subsequently messy divorces - but the reality is that prenuptial agreements are becoming increasingly popular amongst couples who may not have millions sitting in the bank. Though many fear that a prenuptial agreement is simply about expecting a worst-case scenario, ie divorce, a couple's need for such an agreement isn't based solely on their income or assets. Traditionally, a prenuptial agreement would determine the fate of a couple's assets. For example, property. It may also address any financial obligations held as a couple, such as debt. It’s very common these days for couples, even on lower incomes, to hold debt from credit cards, university or college fees, personal loans and so on. So, it would be wise to segregate these debt obligations and discuss whose income will be used to pay them so everything – remember it can be easier to have these conversations when you are most aligned with each other and not further down the line should the relationship faces any stumbling blocks. Prenuptial agreements are entered into freely by couples prior to their marriage and are referred to in the event of separation and divorce proceedings. You may think that having an agreement in place makes things easier, sadly, it is not always that simple! In the event that the marriage fails, and one of the couples no longer wish to be bound by the terms of the prenuptial agreement they are not, prevented from making an application to the Family Court in respect of finances. You may be thinking why would the courts not uphold an agreement that the couple entered into freely, knowing what each other owned and earned before marrying? Initially, it was believed to be against public policy to allow a couple who are about to marry to make an agreement about what would happen should they split. The primary reason being that by having the agreement about what would happen if they separated, would encourage them to do just that. Over time there has been increasing weight given to the authority of prenuptial agreements. This, of course, raises the question, how much weight should be given and how should the court approach the task of deciding this? This brings me to the 2010 case of Radmacher v Granatino. Infamous in the world of family law. It was held that the court should give effect to an agreement entered into freely by each party with a full appreciation of the implications unless, in the circumstances prevailing, it would not be fair to hold the parties to their agreement. There is much debate around the opportunity for law reform in this area. In 2014 a draft Nuptial Agreements bill, which included a provision for ‘qualifying nuptial agreements’ was proposed however the justice minister at the time stated that consideration of this bill would be postponed. Lord Wilson has recently entered the debate and has stated that he believes that the law surrounding prenuptial agreements may need further consideration. Those seeking to make an agreement about what will happen to their finances should their marriage fail are often looking for certainty. The fact that there is a level of uncertainty as to whether their agreement will be upheld by the courts on the breakdown of their marriage is clearly unsatisfactory. On the other hand, many feel that couples should not be able to potentially disregard the law that contains mechanisms for the division of assets on divorce and agree on something completely different. These agreements certainly don’t scream ‘romance’, after all, they are asking a couple to decide what will happen should the marriage fail, usually just months before they tie the knot. This in itself may lead to a party, who may not have assets or income themselves, feeling pressurised into signing an agreement to prevent ‘rocking of the boat’ if they were to refuse to sign. If these agreements were strictly enforceable it may lead to some parties being very hard done to. The debate continues, and it appears that unfortunately, consideration of any reform in this area is not top of the agenda. Nevertheless, couples entering into prenuptial agreements are on the increase!http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2017/june/before-you-say-“i-do”/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2017/june/before-you-say-“i-do”/Mon, 05 June 2017 15:00:00 Government Introduces New Bail LimitGabrielle Kitchenhttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2017/may/government-introduces-new-bail-limit/The government has introduced a 28-day limit on pre-charge bail as part of its shake-up aiming to end the “injustice” to individuals kept on bail for excessive periods of time. Previously, there has been no cap on the time period suspects are on bail for, so in theory, they could be placed on bail indefinitely. Last year over 4,000 people were on bail for over six months. It is often the case that people are given very little information whilst on bail and have no legal ability to challenge their position. We have seen a number of high profile cases covered by the media that highlight the issues faced. The former owner of Wycombe Wanderers FC, Steve Hayes, was re-bailed on at least nine separate occasions and placed on bail for a period of almost four years before a decision to take no further action against him was made. In an effort to put a stop to any injustice of excessive bail periods, the government has introduced the Police and Crime Act 2017, which came into effect on 3rd April 2017, and makes key amendments to the existing Police and Evidence Act 1987 (PACE). Under the new act, there is now a presumption of release without bail unless the “pre-conditions” for bail are met. Arguably, the key change is section 62, as we see the introduction of time limits of bail under s.30A of PACE. If the defined “pre-conditions” are met then a maximum 28 day period of pre-charge bail can be set. This date will begin from the day after arrest and will be called the ‘Applicable Bail Period’ (ABP). However, there are exceptions that allow for bail to be extended for a period of three months. It must be clear that pre-charge bail only applies when the suspect is placed on bail for the police to conduct further enquiries. Where a suspect is placed on police bail for a charging decision from the Crown Prosecution Service (CPS) then the existing condition of s37(7)(a) of the Criminal Evidence Act 1984 still applies. This means that the person will be on bail with no time limit. Police Bail – Understanding Your Rights When released on bail there are important procedural steps that must be followed. A suspect on bail must be provided with; 1. Notice of the police station they are required to attend; and 2. The time on the bail end date when the person is required to attend the police station. This must fall within the ABP, if it fails to do so a person may not be required to attend under section 6 of the Police and Crime Act 2017. In some cases, the Police can make an application to the court to extend the bail period. This can be extended by three months at a time, and there is no limit to the number of times they can apply. Where a suspect is placed on pre-charge bail for further enquiries with a 28 day ABP, and the police have completed their enquires, the case is passed to the CPS for a charging decision. The ABP concludes at this point. The suspect will then be either expected to attend court or notified that there will be no further action. Should the CPS require further enquiries to be made by the Police before a decision can be made, then a new ABP will apply. If a charging decision has not been made by the CPS within 12 months then the suspect can request a hearing in the Magistrates’ Court to ensure that the investigation is being carried out expeditiously. This can encourage the Police to make a decision one way or the other. In the event that new evidence is discovered during this lengthy process, and/or further arrests are made, then the whole process starts again with a new 28-day window. Arguably, enquiries by Senior Police Officers in cases where suspects have been on bail for lengthy periods of time should be welcomed. However, the Police have raised concerns about the changes. A limit of 28 days could result in time and resources being placed on the applications for extensions rather than investigating these complex cases. It would also see the responsibility placed on Inspector and Superintendent ranks, which have been heavily reduced in recent years. Whilst the changes may be a step in the right direction there are notable flaws in the proposal, in that although technically suspects of a criminal offence will no longer be placed on police bail, they will instead be released without conditions. Could this result in suspects of serious offences released without charge and placed back into the community with no way to monitor their whereabouts or protect the alleged victim? The question must, therefore, be asked, does the introduction of the pre-charge bail simply encourage the police to not use it and instead release suspects from bail so as to save on the paperwork and resources, and if so does this simply defeat the object of the reforms all together? I’ll certainly be keeping a close eye on the effectiveness of the new system!http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2017/may/government-introduces-new-bail-limit/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2017/may/government-introduces-new-bail-limit/Fri, 05 May 2017 00:00:00 Making Female Employees Wear Heels Is IllegalLindsey Knowleshttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2017/may/making-female-employees-wear-heels-is-illegal/The experience of one young woman sent home from the workplace for not wearing heels led to country-wide debate. The House of Commons recently discussed an e-petition relating to dress codes and high heels in the workplace. The e-petition, launched by Nicola Thorp, was signed by over 152,000 people, with many calling on the government to review the law and, if necessary, push for changes to it. Ms Thorp’s experience has been well publicised across national media and has generated mass commentary and opinion. Upon arriving for her first day of work as a receptionist at a large financial firm in the City, wearing smart flat shoes, Nicola Thorp was informed by the agency which employed her that she needed to buy shoes with a heel between 2-4 inches high or go home without pay. She declined to buy the shoes and was sent home without pay. Whilst the government has rejected the call for a legislative amendment to make it specifically illegal for employers to require women to wear high heels to work, it does not automatically follow, as many of the media headlines have stated, that employers can force women to wear high heels to work. What the government actually stated is that it believes the current discrimination law is “adequate” to deal with discriminatory dress codes. Indeed, it is already unlawful to require an employee to wear high heels at work. Let’s look at this in more detail. Requiring a woman to wear high heels could be direct sex discrimination under the Equality Act 2010 if it means that she is treated less favourably than a man. The high heels requirement may also be indirectly discriminatory if a woman can show that it puts women in general, and her in particular, at a disadvantage compared to men. For employers trying to rely on the idea that male staff are required to dress to an equivalent level of smartness doesn’t work as high-heels are almost uniquely worn by women. Unlike direct discrimination, indirect discrimination can be justified if it is “a proportionate means of achieving a legitimate aim”. It is, however, difficult to see how an employer could objectively justify the requirement for high heels if it is based on purely aesthetic grounds. The real issue is that although there is protection from discrimination and such detrimental dress codes covered by the Equality Act 2010, it is difficult for women to utilise and apply the law and there are areas of uncertainty for employees as well as a general lack of awareness by employers. To make the law clearer to employers and raise awareness among employees, the government will be producing new guidance on workplace dress codes. Hopefully the forthcoming guidance on the issue may help clarify the finer details of what employers can, and can’t, get away with in employee dress codes. Any dress code should not be stricter or cause any disadvantage to one gender over another. Employers should aim to apply a fair and equal approach to all employees to allow a corporate and smart image whilst ensuring that they do not discriminate against anyone due to a protected characteristic.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2017/may/making-female-employees-wear-heels-is-illegal/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2017/may/making-female-employees-wear-heels-is-illegal/Thu, 04 May 2017 00:00:00 Uber loses landmark employment status case Lindsey Knowleshttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/october/uber-loses-landmark-employment-status-case/Uber, the well-known taxi-booking service, can no longer classify its drivers as self-employed, an employment tribunal ruled last week. The case has been described as a test case not only for the business model of ride-hailing firm Uber, but for the whole so-called "gig economy". In a long-awaited judgment following a hearing in July this year, an employment tribunal agreed with two drivers that Uber drivers were not self-employed and should receive the ‘national living wage’, annual leave and other ‘workers’ benefits. Uber, which operates through a Smartphone app, argued that it was a technology company which acted as a linking platform between self-employed drivers and passengers, not a taxi company that employs taxi drivers. Therefore it said that employment laws did not apply to its drivers. The tribunal disagreed and dismissed Uber’s claim that its London operation was a mosaic of thousands of small businesses linked by a technology platform as “faintly ridiculous”. They said Uber resorted to “fictions, twisted language and even brand new terminology” to portray their drivers as self-employed. Uber will take the case to the Employment Appeal Tribunal, and following its decision there could be further hearings in the Court of Appeal and then the Supreme Court. Any payments due to drivers will not be calculated until that process is over. Given the significance of this case I expect it will go all the way to the Supreme Court and we may not see a final determination for some time to come. It’s important to note that other drivers with the firm will not automatically receive payouts but, if the company accepts the ruling, it will have to change its contracts to avoid more cases being brought by drivers. Firms with large self-employed workforces could now face scrutiny of their working practices and the UK’s biggest union, Unite, announced it was setting up a new unit to pursue cases of bogus self-employment. The Citizens Advice estimated that the yearly cost in lost tax and employer national insurance contributions from falsely classified employees is £314m. Other cases are likely to follow the Uber judgment. Cycle couriers are making similar claims against firms including CitySprint, Addison Lee, eCourier and Excel. I understand that workers at Deliveroo, which delivers meals by cycle and motorbike, are also considering claims. However, the fact that the Uber claimants have won their case does not automatically mean that cases brought by others will have the same success. Each case will depend on the specific terms and arrangements between the individual and the company they work for. Link to full judgment: https://www.judiciary.gov.uk/wp-content/uploads/2016/10/aslam-and-farrar-v-uber-reasons-20161028.pdfhttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/october/uber-loses-landmark-employment-status-case/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/october/uber-loses-landmark-employment-status-case/Mon, 31 October 2016 00:00:00 Social Media Trolls Could Face ProsecutionAmanda Yorkhttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/october/social-media-trolls-could-face-prosecution/In recent years, given the rise in the use of social media platforms such as Twitter and Facebook, it is no surprise that the Crown Prosecution Service (CPS) has issued guidance setting out in what circumstances they would seek to prosecute individuals who create and share offensive posts online. Despite previous guidance being issued highlighting the issues posting on social media, it would appear that public understanding remains unclear. The new guidance coincided with Hate Crime Awareness Week which sought to tackle the ongoing issues with inappropriate posting and sharing on social media. A recent report suggests that as many as one in four teenagers have suffered online abuse as a result of their gender, race, sexual orientation or religion to name a few. It is an offence under the Malicious Communications Act 1988 to “send or deliver letters or other articles for the purpose of causing distress or anxiety.” This means that it is an offence to send communications that are indecent or “grossly offensive,” threatening or false. This includes messages communicated through social media. Section 127(1) of The Communications Act states that it is an offence to make improper use of a public electronic communications network. This would include sending "a message or other matter that is grossly offensive or of an indecent, obscene or menacing character". Section 127(2) makes it an offence to send messages "for the purpose of causing annoyance, inconvenience or needless anxiety to another". This particular offence can apply to messages sent by email or by other forms of communication. The new guidance seeks to assist the police by setting out in what circumstances it would be appropriate to prosecute those caught sharing what “grossly offensive” material. The test to determine whether a post is grossly offensive is set out in DPP v Collins [2006] 1 WLR 2223. It states that if the message would cause ‘gross offence’ to the person who it relates to, this would satisfy the test. The new guidance itself is somewhat vague providing only a few examples of what may be deemed inappropriate. It introduces a concept of “virtual mobbing” highlighting a growing trend on social media. It means that those involved in encouraging other social media users to engage in an ‘online harassment campaign’ may fall foul of the legislation. This will include the creation of derogatory hashtags which may be deemed “grossly offensive.” Such behaviour may amount to a campaign of harassment. In such cases, virtual mobbing or more simply those who encourage others to enhance is online hate campaigns will be prosecuted through The Serious Crime Act 2007. Another example set out in the guidance includes the distribution of personal information such as bank account details or a person’s home address, known as ‘doxxing’. Those who share such information are likely to fall foul of the legislation under the new guidance. However, as social media posts have the ability to be shared worldwide to millions in an instant, the guidance fails to acknowledge what jurisdiction and the control the UK courts will have. For example, if other social media users across the world contribute to such activity, how far can the UK courts hold those charged accountable? This is potentially an international issue and it will only be clear once more cases are brought before the court. The guidance does make clear that anonymity is not a defence and therefore, those who believe they are posting ‘anonymously’ if caught; will still face prosecution under the new guidance. Those found guilty of the above offences under the new guidance could face up to six months in custody and or a fine not exceeding £5,000. The CPS has reported that in 2015-2016, hate crime prosecutions were at an all-time high. More than four in five of those charged with offences resulted in a conviction. It will be a matter of time which will determine whether the new guidance results in more convictions against those suspected of engaging in such activity.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/october/social-media-trolls-could-face-prosecution/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/october/social-media-trolls-could-face-prosecution/Wed, 19 October 2016 00:00:00 Male Domestic Violence: A Big Taboo SubjectPaul Hunthttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/october/male-domestic-violence-a-big-taboo-subject/As the former New Order bassist Peter Hook launches his autobiography, Substance, readers are given an insight into his troubled marriage to much loved comedian superstar, Caroline Aherne, who died from cancer earlier this year. Hook has provided revelations of an abusive and controlling relationship, and one which involved physical violence towards him. It interests me to learn that his openness in sharing this information has been met with mixed reaction. It is difficult to know where the truth lies, but what is undoubtedly evident is that domestic violence perpetrated against men is still largely unrecognised and unreported. However, latest statistics* show that for every three victims of domestic abuse, two will be female, one will be male. Alarmingly, these figures are the equivalent of 2.2 million male victims. One in six men suffers from domestic abuse in their lifetime. Why is it that male domestic violence remains one of the greatest taboo subjects in modern day society? Many dedicated charity initiatives, in these times of restricted budgets, continue to focus almost entirely upon female victims, and whilst of course this is imperative, I feel male victims are largely left unsupported. As a family law practioner, I often see a reticence on the part of victims to reporting abuse to the police because there is a fear that they will not be taken seriously. It is also still perceived as an admission of failure to stand up for one’s self. Whether Hook’s revelations of domestic violence are true or not, somebody of his stature will place a much needed spotlight on male domestic violence and hopefully provide men with reassurance and confidence in coming forward. As a society we need to open our eyes to the issues. I often recall the attitudes represented some time ago when a video was filmed before unsuspecting members of the public involving abusive behaviour with the male/female roles then reversed. The female “victim” was treated with compassion and a need for protection while the male “victim” was treated with derision. It’s equally important that men understand that they have a support network, and that the same legal mechanisms available for female victims of domestic violence , also apply to them. When either a man or a woman is seeking the protection of the court by way of a Non Molestation or an Occupation Order, Legal Aid continues to be available for those applications. * http://new.mankind.org.uk/wp-content/uploads/2015/05/30-Key-Facts-Male-Victims-Sep-2016.pdfhttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/october/male-domestic-violence-a-big-taboo-subject/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/october/male-domestic-violence-a-big-taboo-subject/Fri, 07 October 2016 00:00:00 Getting rid of the multi-tasking mindsetSolicitorhttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/october/getting-rid-of-the-multi-tasking-mindset/We all know what it’s like to be short on time. But over the past few months we’ve seen an increased number of stressed-out drivers applying make-up, programming their sat-nav, and even shaving while on the move, in a desperate bid to save some time. Perhaps not surprisingly, the use of mobile phones while behind the wheel is one of the biggest distractions, which is why the Department for Transport recently announced a crackdown on drivers caught using them, with fines and points doubling from next year. The law already makes it clear that it is an offence to ‘use’ a mobile phone while driving, but the crackdown will make the penalties for doing so even tougher, with guilty drivers being hit by six points on their licence and facing a £200 fine. So dialing a number, checking emails, sending texts and certainly taking selfies or posting a status on Facebook while driving will all land drivers in hot water. Also, if you have something in your hand, such as food, drink, lipstick or a razor while driving, you can be prosecuted for not being in proper control of your vehicle. And if you kill or injure anyone because of poor driving, and it is because you were doing any of those things, you could find yourself serving a lengthy prison sentence. In fact, even something as simple as replacing a CD could put you at risk of prosecution, as the very act of doing so means that one hand has to be taken off the wheel and the driver has to take their eyes off the road. Therefore, it could be argued that in changing a CD you are not in proper control of your vehicle. The safest way to protect both yourself and others from getting in trouble with the law and from becoming involved in a road accident is to treat driving as a task in itself, rather than trying to combine it with other jobs. The law doesn’t care how busy you are – and sending a quick email while on the move could cost you years in jail.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/october/getting-rid-of-the-multi-tasking-mindset/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/october/getting-rid-of-the-multi-tasking-mindset/Mon, 03 October 2016 00:00:00 Landlord Update: Smoke and Carbon Monoxide DetectorsDanielle Hugheshttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/october/landlord-update-smoke-and-carbon-monoxide-detectors/Landlords, did you know that the Smoke and Carbon Monoxide Alarm (England) Regulations 2015 came into force as of 1st October 2016. For those landlords who have not yet taken steps to ensure compliance with the new rules, now is the time to undertake urgent inspections of your rental properties and ensure that they are fitted with functioning smoke and carbon monoxide alarms. Remember, failure to comply will leave you exposed to remedial and penalty charge notices, which can result in fines of up to £5,000.00 per property! So, what do the 'Regulations' say? Firstly, Smoke alarms must be fitted on each storey of a property where there is a room used as living accommodation. This includes bathrooms. Carbon monoxide alarms must also be fitted in any room which is used as living accommodation and contains a solid fuel burning combustion appliance. This means appliances that are powered using a type of solid fuel, such as coal or wood. Checks must be made to ensure that each prescribed alarm is in proper working order on the day the tenancy begins if it is a new tenancy. Take “all reasonable steps” A landlord can not be held liable for a fine if they can show that they have taken "all reasonable steps" to comply with the duty. After the initial testing, tenants should then take responsibility for their own safety and test all alarms regularly to make sure they are in working order. Monthly tests are generally considered an appropriate frequency for smoke alarms. If your tenant has denied access to the property, the Government does have recommendations in place. It is advisable to write to the tenant to explain that it is a legal requirement to install the alarms and that it is for the tenant’s own safety. The UK Fire Service Resources Group reports that, every year, the Fire Services are called to over 600,000 fires which result in over 800 deaths and over 17,000 injuries. Their statistics show that people are “twice as likely to die in a house fire that has no smoke alarm than a house that does”. They also estimate that there are 50 deaths and over 1,100 annual admissions into hospital as a result of carbon monoxide poisoning. The legislation is in place for a reason. Many of these injuries and fatalities might have been avoided if an adequate warning system was installed. Our advice to landlords is not only to comply with the Regulations but to be sure to keep a detailed account of any steps taken to comply –i.e. purchasing and instillation of alarms, dates of inspections to show that you have taken all reasonable steps. For more information visit www.alarms4life.com . Here, you can find practical tips, including details of local fire and rescue authorities and information regarding applying for free alarms. The Government has also issued guidance, to download this explanatory booklet for Landlords and more information visit: https://www.gov.uk/government/publications/smoke-and-carbon-monoxide-alarms-explanatory-booklet-for-landlords/http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/october/landlord-update-smoke-and-carbon-monoxide-detectors/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/october/landlord-update-smoke-and-carbon-monoxide-detectors/Sat, 01 October 2016 00:00:00 Crisis in Child Care Cases?Paul Hunt http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/september/crisis-in-child-care-cases/It was only recently that I read comments in the media from President of the Family Division, Sir James Munby, about the significant increase in the volume of care cases being dealt with by the courts. He openly expressed concern about the rise in costs, particularly the longstanding practice of children in care proceedings being represented by a Guardian appointed from CAFCASS, and in court by a solicitor upon instruction from the Guardian. Potentially this is a doubling up of effort! However, whilst expressing his concern, the President nevertheless felt that this was a practice which should essentially remain in place. The roles of the Guardian and the child’s solicitor are very different, and it’s difficult to see how one role could interlink with the other. The President also referred to the significant rise in care cases, with an increase in a single year of 35 per cent in 2009-10 with the overall increase over a 5 year period up to 2015 of 26 per cent. Will the impact of such an increase bring the courts to crisis point? The President certainly thinks so – and with good reason. Courts will struggle to cope with what, based on current trend, is likely to be a continued increase. There is no clear view as to why the volume has increased so dramatically. Ultimately, it’s the decision of the Local Authority as to whether care proceedings are issued or not. Therefore the increase in cases must relate to the decision making process of each Local Authority. Either we are experiencing a huge increase in cases of alleged neglect or abuse that require court intervention (although it is difficult to see how this alone could account for such a rise), or there is a perception on the Local Authority that proceedings should be issued, and sooner rather than later. Partly this could be as a result of criticism from the courts about the overuse of Section 20 of the Children Act 1989 which provides for voluntary accommodation. This was only ever intended to be a short term measure while assessments are carried out and not, as is sometimes the case, to be used for several years. Are we also witnessing an element of self-protection? High profile public enquiries following deaths of children (particularly “Baby P”) may have made it more likely for the Local Authority to want to formalise their involvement by putting matters in the hands of the court for a decision. Whatever the reasons, they are complex. It is expected that the courts will need to revise their practices; perhaps re-deploy Judges to the most pressurised courts, and to seek to resolve cases more quickly and efficiently – although there is of course already a requirement for cases to be concluded within 26 weeks.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/september/crisis-in-child-care-cases/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/september/crisis-in-child-care-cases/Thu, 22 September 2016 00:00:00 Legal Aid - Waste of Money?Paul Hunthttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/august/legal-aid-waste-of-money/There has recently been some publicity in the press involving a man who was convicted of killing his child and the sum of 2 million pounds of Legal Aid money is said to have been wasted on legal fees in representing him. Firstly, I understand that the amount involved was not in fact 2 million pounds but it was still a very substantial sum of money. It is very easy to be retrospectively indignant regarding Legal Aid costs for someone who does not appear to have been deserving of assistance from the State, but it does make a good headline to stir up the fury of middle England. But can I suggest, however, that we consider this and take stock of what the alternatives would mean? Firstly, in relation to the criminal proceedings and when there is an extremely serious charge, it is only right and proper that there be full representation provided so that there is an equality of arms with the State who is bringing the prosecution. The Legal Aid Agency cannot and should not be expected to assess the prospects of an acquittal or form its own view as to the person’s guilt. The same principally applies for care proceedings for children within family law. Within Legal Aid for Family Law, the only instance where legal representation is automatically available, without any assessment of a person’s financial circumstances or the merits of the case, is if the party is a parent in an application for a care or supervision order brought by the Local Authority. “None merits tested” is exactly what it says. The parent is automatically entitled to Legal Aid whatever the circumstances. The parent is facing the might of the Local Authority, and while the Local Authority’s budget is certainly not bottomless, it is certainly considerably more extensive than that of a private individual whose means may well be extremely limited. The parent should be able to have access to representation when the situation is so serious and the outcome could be the permanent removal of children from the family as a result of the intervention of the State. Because this is a State intervention case then the balance of power has to be maintained. This is something which successive Governments have adhered to despite the drastic reduction to the Legal Aid system in 2013. This means that even the most negligent parents will still be entitled to Legal Aid for care proceedings. The alternative is that the Legal Aid Agency would be expected to form a view, right from the outset, and based upon the Local Authority’s paperwork as to whether they, not the court, thought that the Local Authority had demonstrated sufficient grounds for bringing the proceedings and crossing the threshold of significant harm. Would anyone want the Legal Aid Agency to prejudge their guilt or culpability at the outset and decide to ‘throw them to the wolves?’ The same does not apply to everyone in care proceedings and it has increasingly been my view that there are other people who are drawn into public law proceedings who do not enjoy the advantages of automatic ‘none means, none merit tested Legal Aid’. There are other family members who may seek to apply to intervene in the proceedings such as grandparents or other relatives, especially if they have had negative viability assessments from the Local Authority and wish to challenge them and seek an independent assessment. They can still apply for Legal Aid because it is a public law matter and therefore within the scope of the reduced Legal Aid system, but in this case they have to have passed the test of both merits and means – in other words they have to qualify financially. Grandparents who may have savings that take them over the limit, for example, would not be able to obtain public funding. There are others who are drawn into care proceedings unwillingly but for whom the outcome of those proceedings have significant consequences. If there is an unexplained non accidental injury to a child then sometimes there can be a number of persons any one of whom might have been responsible for causing this injury. This collection of people is often described as a ‘pool of perpetrators’. These may be people who were around at the relevant time when according to the medical evidence the injury was sustained and the court may have to have a ‘Finding of Fact’ hearing to determine responsibility. Because those other people who could be friends or family members could be found by the court to be guilty of causing the injury then they are brought into the proceedings as interveners and are required to attend and participate. Again, they can apply for Legal Aid for representation but again it is means and merits tested. Either they may not qualify at all financially or there are inevitable delays in obtaining the approval of the Legal Aid Agency for representation. The result certainly matters because if the court formed a view that a family member had been responsible for an injury then that would be a ‘finding of fact’ that would stand as conclusive for all future purposes and would be expected therefore to have serious repercussions for their ability to care for their own children. I think there is a case for arguing that anyone who is brought into care proceedings as an intervener, for a ‘finding of fact’ involving a pool of perpetrators, should for the purposes of the ‘finding of fact’, be entitled to the same none merits - none means tested Legal Aid as a parent would. Whilst their liability may not be at stake, their own future life could be very seriously prejudiced by an adverse finding. However, I have no expectation that the state is likely to extend the Legal Aid system in that way.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/august/legal-aid-waste-of-money/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/august/legal-aid-waste-of-money/Tue, 23 August 2016 00:00:00 Is it time for a Cohabitation Reform?Paul Hunthttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/august/is-it-time-for-a-cohabitation-reform/The latest round of statistics in marriage versus cohabitation appear to indicate that almost 10% of the adult population are now living together in a relationship that does not involve marriage. Cohabitation has a long way to go to catching up with marriage as the same statistics appear to indicate that more than half of people aged 16 or over are living as part of a married couple. The gap however is slowing closing. Relationships however will continue to fail. There will continue to be separations, marriage annulments and divorce papers filed which will always prove to be difficult emotionally and also from a practical point of view, with separated parties having to go through the difficult process of dividing assets and arranging their future housing needs. The problem is that we have two completely separate systems for dealing with relationship breakdowns . The first of these is the divorce legislation which has been in place for a long time and which contains a framework to deal with applications for “financial remedies”. If the parties cannot agree, the court has a list of factors which is required by law to take into account when carrying out the difficult balancing exercise as to how assets are to be divided. These factors include the needs of parties and especially the housing needs for children . On the other hand there is no equivalent framework to deal with the fallout from the ending of a civil partnership . There is no statutory provision for maintenance between the adults. There is no framework to deal with a division of property. The only common factor is the Child Support legislation which applies to all families. In cohabitation cases, the issue of ownership of property can be dealt with only through the relatively narrow focus of Property &amp; Trust law and primarily through applications for declarations of legal interests and for orders for sale under the Trust of Land &amp; Appointment of Trustees Act 1996. In such circumstances the court is primarily is looking to see what stated legal ownership of the property is and whether there is any evidence that it was intended that the non owner should have a share of the house or in the case of jointly owned properties whether there was any intention of the split of ownership being anything other than 50/50. The court focuses on ownership and intentions and is not driven by factors such as housing needs. We therefore have on the one hand the highly discretionary needs based divorce framework and on the other a landscape on which there is no recognition of or provision for needs which is based purely on property ownership arguments. It is therefore very likely that two couples separating in the same street could have their future and quite possibly their children determined by whether or not there is a marriage certificate. It could be argued that is as it should be. If someone has chosen not to enter into the commitment of marriage then they cannot complain that there is no legal framework in place to support the ending of a relationship which in itself has no legal status. I have no doubt that some property owners are very careful when entering into relationships, they avoid doing or saying anything or taking any money, which could give the non owner any possibility of an argument that they should have a share of the house. There is a strong argument for general advice and education on these matters and if people do wish to go into cohabitation in the knowledge that it would not create any legal obligations between the parties then at least they will do so with their eyes open. Quite where that advice would come from is difficult to say. Individuals generally do not take advice about legal implications when they begin relationships. This is not a situation where something “obviously” needs to be done because there are many “pulls” in one direction as there are in the other and whether the present situation is good or bad very much depends on where you are standing.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/august/is-it-time-for-a-cohabitation-reform/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/august/is-it-time-for-a-cohabitation-reform/Fri, 05 August 2016 00:00:00 Is the Commercial Property Market Closing?Lisa Evanshttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/july/is-the-commercial-property-market-closing/So, we have reached the annual halfway point with many in the commercial property sector still waiting for something to happen; some sort of movement. Their request has been answered, albeit movement in the wrong direction! With a 40% rise in the commercial property sector since 2009, and continual growth up until this year, it would seem the tables have turned. In the last week we have witnessed the closure/suspension of many property funds. Henderson, Canada Life and Columbia Thread Needle, to name but a few, all ‘gated’ their property funds. Some have speculated that 50% of the UK property funds are now gated as investors withdraw their cash from the funds - largely due to the falling pound. We will we soon witness a frenzy to “sell, sell, sell” and offload commercial property ? If so, will this create that golden opportunity for foreign investors to hunt for those bargains and pick up prize buildings for very little? Surely this is what the property investments funds were actually trying to avoid. By closing the gates they intended to try and stem the market and prevent fire sales. Morgan Stanley suggest that this might actually be beneficial for the UK “Front-loaded GBP weakness could even be beneficial for the UK, allowing it to generate inflation expectations which, in conjunction with lower nominal bond yields, could channel real yields to low enough levels to support investment picking up.” Investors, at home and abroad, would do well to stay vigilant over the coming weeks as it is anticipated that more property fund companies will follow suit. With the dust not being set to settle soon, uncertainty prevails.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/july/is-the-commercial-property-market-closing/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/july/is-the-commercial-property-market-closing/Tue, 12 July 2016 00:00:00 It’s ok, I can get someone to take my points…Solicitor http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/july/it’s-ok-i-can-get-someone-to-take-my-points…/Well, I would suggest a pause for thought. Did you know that the offence of Perverting the Course of Justice (POCJ) can be committed after the Police issue a Notice of Intended Prosecution (NIP), following an allegation of a minor motoring offence such as speeding ? POCJ is an offence that can only be dealt with in the Crown Court and carries a maximum of life imprisonment. It is an offence that usually carries an immediate prison sentence, even for individuals of good character who have never been convicted of an offence in their lives. Someone like you wouldn’t commit an offence that serious would you? When a vehicle is suspected to have been involved in the commission of a driving offence, the police will send a NIP to the registered keeper of the vehicle. If the registered keeper fails to respond within 28 days they will be prosecuted under S172 of the Road Traffic Act for failing to identify the relevant driver . This is an offence that carries six points or a discretionary ban and a fine, court costs and a Victim Surcharge. If the driver of the vehicle faces a “ totting up” disqualification , revocation of his licence as a new driver , or simply cannot afford more points for employment or financial reasons, for some, the temptation is sometimes strong to ask someone else (friend, partner, spouse etc) to “take the points”, in this situation you are both committing the offence of perverting the course of justice. Famously such a scheme backfired spectacularly on former Government minister Chris Huhne and his wife , who both received an eight month prison sentence. More recently, there was a well publicised case where an aspiring young woman in the UK was found guilty of paying another to take points for a speeding offence . The lady in question wanted to keep her driving licence clean and had no previous driving convictions. Even when given the opportunity by the court to confess to the crime after suspicions arose – she remained adamant that it was not her driving the vehicle. She was found guilty and received 3 months imprisonment, 56 week driving ban and a career in tatters. Our advice would be to not run the risk. Yes the reality is that you may well get away with it. The camera that detected the driving offence usually only shows the rear of the vehicle and doesn’t show who was driving. But what if you are one of the unlucky ones caught out in some unexpected way? Ask yourself, are you willing to gamble on this and that there will be no unforeseen circumstances that will foil your perfect plan? The real questions I suggest you ask yourself are whether you prepared to go to prison if the gamble doesn’t pay off? All for the sake of your driving licence? So if you do decide to get someone to take the points for your driving offence (and I would strongly advise against it), hopefully you are now going into it with your eyes open, content with the risk, however slight, that you could end up behind bars at Her Majesties’ pleasure. If however, you value your good name and liberty but your driving licence is vital, there are legitimate arguments that can be made at court to avoid losing it, without having to commit a criminal offence and to serve a lengthy prison sentence as well...http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/july/it’s-ok-i-can-get-someone-to-take-my-points…/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/july/it’s-ok-i-can-get-someone-to-take-my-points…/Fri, 08 July 2016 00:00:00 UK Votes to Leave the EULisa Evanshttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/june/uk-votes-to-leave-the-eu/That's right on Friday 24th July we witnessed three evictions. With referendum votes counted Great Britain vacated the EU; Prime Minister David Cameron left Number 10 and Natalie bid farewell to the Big Brother house. It’s with no surprise that commercial property, amongst many things, will be affected by the referendum. It's important to look at why investors choose UK real estate in the first place: 1. Generally, commercial property retains its value if it doesn't increase; 2. The UK economy is considered to be relatively stable, with a rich culture and diversity of people, which makes the UK a good place to do business and therefore invest; 3. There is a steady rent from commercial property tenants who have secure, growing businesses. And it’s not just commercial use properties that catch the attention of investors. Many will have large commercial portfolios made up of residential lettings. The future is uncertain. It was uncertain prior to the referendum and continues to be so. The analysts will speculate, but let's face it nobody has that crystal ball! Who knows what will happen in two years time when negotiations are complete and the exit strategy is defined; it's hard enough to predict what's happening tomorrow let alone what will happen in the medium or long term future. It's this unpredictability which may have a negative impact on large scale investment in commercial property in London. It could be said that where property, both residential and commercial, prices fall as the pound weakens, the time for even more foreign investment may be ripe, almost like a real estate bargain hunt in the capital! My hope is that SME’s have considered the potential outcome of each scenario and where needed, have contingency plans in place. For those that were relying solely on a 'remain’ result, it’s vital that preparations begin for stability and business growth. I have heard various business commentators in the build up to the vote talk about the benefits of this new environment for SME’s. Will they thrive in the absence of the so-called ‘red tape’ of EU legislation? Or, will the impact of retracted EU grants, loans and finance only suppress our SMEs? Will this financial tide go out and never come back in? One would hope that funding will be pumped back in to provide the SME infrastructure with the financial support it needs to thrive. But whilst the leave party has stated that there will be 'big savings' as a result of Brexit, nobody has actually said how and where these 'big savings’ will be allocated. Many argue that it’s “business as usual’. Time will tell. The true consequences of this historic moment won't be realised for many years - whether they be good or bad!http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/june/uk-votes-to-leave-the-eu/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/june/uk-votes-to-leave-the-eu/Tue, 28 June 2016 00:00:00 Retail Needs to Remember It's Duty of CareJames Barkerhttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/june/retail-needs-to-remember-its-duty-of-care/Recently there was a much publicised story of a shopper who sustained severe injuries when visiting supermarket giant Aldi in Widnes. She sustained the injuries when building tiles on the Aldi store fell onto her - causing serious injuries which hospitalised her. Following this terrible accident there will certainly be a wide scale investigation from the Health and Safety Executive whose findings will be revealed in due course. This will inevitably raise public concerns as to what level of care is expected by the likes of retail giants such as Aldi, Sainsburys, Asda and Tesco? What is clear when we look at case law is that the courts of England and Wales take customer safety extremely seriously, regardless of the size of the business. This is historically evident with the number of cases won by individuals for injuries sustained due to retailer negligence. Members of the public should be aware that all supermarkets have a duty under the Occupiers' Liability Act 1957 to ensure that visitors are safe when they visit their stores. If a retailer has failed in their duty of care and the court feels that not enough steps or precautions were taken by the owner to ensure that their shoppers were safe - then the Court will order the retail owner to pay damages to the injured party. The amount of damages awarded obviously depends on the severity of the injuries. In the case of the unfortunate lady in Widnes – Aldi could be ordered to pay a significant amount of damages due to the severe physical and psychological injuries suffered. It must be recognized by retailers that they have a duty to provide a safe environment for their customers and there is simply no excuse for a failure to provide this protection. The incident at the Aldi store in Widnes was an unacceptable situation, and was an accident which could have been prevented by the supermarket making checks to ensure that their premises was safe and not dangerous to customers. This situation should serve as a stark reminder to the rest of the retail industry of the duty of care they are required by law to provide to their customers.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/june/retail-needs-to-remember-its-duty-of-care/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/june/retail-needs-to-remember-its-duty-of-care/Thu, 16 June 2016 00:00:00 ITV’s Emmerdale Shines Light on DementiaAnnie Thomashttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/may/itv’s-emmerdale-shines-light-on-dementia/The current storyline on the popular ITV soap Emmerdale has touched the hearts of the nation and raised awareness on the damaging impact of dementia. We have been captivated by Emmerdale Actor John Middleton’s portrayal of the resident vicar Ashley Thomas since he entered our screens in 1996 and we are now witnessing the effects of onset dementia on not only Ashley Thomas himself, but on those around him. The narrative began with Ashley showing early signs of dementia through his cognitive decline; to the heartbreaking moment when on his wedding day, Ashley did not have the capacity to remember that earlier in that day he had committed his life “in sickness and in health” to his new wife Laurel. With our aging population and the number of cases of dementia increasing along with it, there is no surprise that the diagnosis of Emmerdale’s Ashley Thomas with dementia is resonating with audiences. Living with a partner, parent or even a child with dementia can be emotionally difficult to experience, with there being no known cause of dementia and unfortunately no known cure. The script writers of Emmerdale sensitively highlighted the destructive effects of dementia with its recent storyline and this has hopefully raised public awareness to plan for the future. By organising a Lasting Power of Attorney and nominating those close to you to act on your behalf, in your best interests, should they be required to assist you in the future, you could ease the strain of your loved ones. If you have any queries about Lasting Powers of Attorney , please contact a member of our legal team for more information.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/may/itv’s-emmerdale-shines-light-on-dementia/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/may/itv’s-emmerdale-shines-light-on-dementia/Wed, 25 May 2016 00:00:00 Safe Public Environments Are Very ImportantJames Barkerhttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/may/safe-public-environments-are-very-important/As we enter into the season of longer days and warmer weather, many of us will be reaching for the tennis racquet at the back of the cupboard, the football from the shed, the swimming trunks from the chest of drawers and heading out to our local sporting facilities. Did you know that under the Occupiers Liability Act 1957 the owners of such facilities need to ensure that all visitors are safe from potential harm ? Providing a safe environment for the public should never be taken lightly. The serious consequences of failing this fundamental duty was highlighted in the recent case of XDX (a minor) v Northampton Borough Council (2015). A very tragic incident in which a child sustained a significant brain injury due to the lifeguards failure to correctly monitor the swimming pool area. The facility failed to comply with the Health and Safety Commission’s 1999 guideline “Managing Health and Safety in Swimming Pools” . The Court found that if the lifeguards had acted with the duty of care required and surveyed the swimming pool correctly they would have prevented the child from sustaining the injury. As a result of this negligence the Local Authority was found to be liable. Accidents can, and do, happen - many with tragic consequences. It is important to remember that if there is a sense that the standard of care provided at a sporting facility is deficient or in doubt – alert the owners of the sporting facilities or the local councils. This would help to provide a safer environment for the public and would help to prevent any incidents in the future.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/may/safe-public-environments-are-very-important/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/may/safe-public-environments-are-very-important/Thu, 19 May 2016 00:00:00 Coercive and Controlling Behaviour LawPaul Hunthttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/may/coercive-and-controlling-behaviour-law/In December 2015, a significant change in law was introduced making it a criminal offence to engage in controlling/coercive behaviour in an intimate/family relationship. It has been recognised that abusive relationships do not consist only of direct threats and physical violence but can also include a control of all aspects of a person’s life and freedom. This can include for example, taking complete control of a person’s finances and steering them away from family and friends who might otherwise provide support. I have doubts as to how effective this might be in practice given that the Police would have to amass a quantity of evidence as to an ongoing course of action. This is a more difficult task than simply setting out details of specific acts of violence. Controlling behaviour is less easy to identify, and there is always the danger of elements of a relationship being reinterpreted with hindsight especially following a breakdown. Evidently, however, it can be done as the Crown Prosecution Service has announced a recent conviction at Liverpool Magistrates Court of a 21 year old man, who has been sentenced for six months imprisonment for this offence. A Restraining Order has also been imposed for a two year period. Restraining Orders have a similar effect to a Non-Molestation Order made in the Civil Courts and breach of both orders would be a criminal offence. The Restraining Order might for example prohibit the Defendant from using or threatening violence. This includes any threatening or abusive communication through email, phone calls, text or via a social media platform. Sometimes, a Defendant will be restrained from having any communication, except for communication via solicitors to deal with issues regarding contact with children . If there are in fact further issues regarding children or finances then a Complainant would be able to identify a Defendant’s conviction or Restraining Order as a stepping stone to apply for Legal Aid. This is due to public funding only being available for a person who is proven to be a victim of domestic abuse (and the existence of a conviction or a Restraining Order is one way of proving this). The difficulty is that the Defendant/ perpetrator is not able to apply for public funding even if the other party has the benefit of Legal Aid which creates an uneven playing field.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/may/coercive-and-controlling-behaviour-law/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/may/coercive-and-controlling-behaviour-law/Tue, 17 May 2016 00:00:00 Recent Decision to Impact Absence in SchoolsSolicitorhttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/may/recent-decision-to-impact-absence-in-schools/The High Court has today ruled on an issue which will be big news for millions of parents across the country. The case concerned Jon Platt , a father from the Isle of Wight who took his daughter to Florida in 2015, causing her to miss seven days of schooling. He returned and was issued with a fixed penalty notice of £60 which later increased to £120 after it was not paid promptly. Mr Platt was then later prosecuted under s444 (1) of the Education Act 1996 which makes it an offence for any parent to fail to ensure their child’s regular attendance at school. Mr Platt argued before Magistrates that his daughter did have “regular attendance” at school, and mid way through his case asked the court to dismiss the Local Authority’s case on the basis that there was no case to answer. The bench agreed that as Mr Platt’s daughter’s attendance at school was in excess of 93%, she did in fact attend school regularly and the prosecution against Mr Platt failed. Perturbed by the decision of the Magistrates Court, the Isle of Wight LEA appealed to the High Court seeking clarification of the law as to whether the Magistrates were entitled to consider overall attendance as opposed to attendance specified within the period of the summons. The High Court has today ruled that the term “regular attendance” should be considered in light of overall attendance as opposed to a specific period of absence during the school year. In literal terms this means that provided a child has good attendance at school, parents are not guilty under s. 444 (1)for taking a child out of school for a short period of time. As a solicitor and a mother of three who represents defendants in the Education Court on a regular basis, today’s ruling is of great interest to me, not least as it throws into uncertainty the Government’s efforts to take a strict line on term time holidays in state schools in England The dispute over term time holidays has been an ongoing issue since September 2013 when new rules came into force taking away a headteacher’s discretion to grant term time leave based on each case’s individual merits. The new rules now only give headteacher’s the power to grant term time leave only in exceptional circumstances. But what is an exceptional circumstance? Examples include taking a child out of school to attend a family member’s funeral, or if a family member in the armed forces is returning from operations. However I was present in court when a case regarding this issue was being heard before Liverpool Magistrates Court. A mother of two children appeared before the court representing herself. She pleaded guilty to the offence under s444(1) Education Act and then told the court that she had separated from her children’s father following domestic abuse and needed to relocate, uprooting her children from their family home. She went on to explain that her father had paid for her and her children to go on holiday to spend quality time together away from the city after their trauma and so she had taken her children out of school for five days and that they had a welcome break from their situation. The bench asked about the children’s attendance and the prosecutor from the Local Authority confirmed that it was around 95%. The unrepresented defendant lost her good character and will now have a criminal record. Today’s’ clarification from the High Court will mean that defendants in a similar position would no longer be guilty of an offence. Like the vast majority of parents in England and Wales, my children’s education is of the utmost importance to me. Whilst to date I have never taken my own children out of school during term time, today’s ruling will have massive implications for me and millions of other parents across the country . Some would argue that missing school; particularly secondary school can significantly affect progress. Others would say that if a child is thriving at school and is rarely absent, it would be unfair to penalise a parent for taking that child away, after all it could well be the case that that same child could simply have been off ill for that period of time. Let’s be clear on this, no statute in English Law says that it is an offence to go on holiday with a child during school term time. However, what the statute does say is that a parent must ensure a child’s regular attendance at school. As a result of today’s decision, the local authority must now take into account a child’s academic attendance record as a whole before prosecuting a parent under s444 (1) of the Education Act, potentially opening the floodgates for parents of children with otherwise very good attendance at school to now be in a position to take their child out of school for family holidays.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/may/recent-decision-to-impact-absence-in-schools/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/may/recent-decision-to-impact-absence-in-schools/Fri, 13 May 2016 00:00:00 Are Female Criminals Punished Too Severely?Amy Valentinehttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/may/are-female-criminals-punished-too-severely/Are women being punished too severely for entering the Criminal Justice System? The Criminal Appeals Strategic Legal Representation Programme certainly thinks so and has given some eye watering statistics to why this is such a major concern that cannot continue to go unnoticed. The statistics do seem to demonstrate an overwhelming indication that women are suffering inappropriate and disproportionate punishment in the hands of the Courts. The Programme is so worried about their findings that they are actively offering women direct help with appealing their sentences immediately. The Programme states that the vast majority of women prisoners are in fact non-violent offenders. Statistics show that 8 out of 10 women prisoners have committed non violent offences. For example, non-payment of council tax or for their childs non-attendance at school. The offences committed are of such a low level that 7 out of 10 women prisoners are serving sentences of less than 12 months. For these non violent women being locked up the punishment doesn’t stop there. The impact of a prison life can be destructive and has far reaching consequences. After the “clang of the prison gates” the devastation continues. The Programme claims that; • Almost a third women prisoners have lost their home as a result of imprisonment; • 9 out of 10 mothers in prison have their children removed from the family home; and • Just 8% of women prisoners are identified as having positive employment prospects upon release from prison. Interestingly this figure is 27% for male prisoners! “Don’t do the crime if you cant do the time” - however dig deeper into the statistics and you may just question whether the term ‘criminal’ is an accurate representation of these women, many of whom would be regarded as the most vulnerable in society. Consider the following; • 50% of all women prisoners have suffered violence at home before imprisonment and a third of these will have suffered sexual abuse; • Many women in prison are more likely to have suffered from drug and alcohol addiction or be victims of abuse; • Many will suffer from mental health issues. Disturbing statistics aren’t they? What I find more worrying however is the fact that these issues, these concerns, this inequality, is not a new discovery. It hasn’t been borne from a think tank of statisticians suddenly trying to find a new headline. It was raised over 10 years ago by Baroness Corston. It was shocking back then, but now this is unforgivable. What has changed in those 10 years? Seemingly nothing. Recent statistics seem worse that ever! What is now being done? It appears that the Centre of Criminal Appeals is taking the reins by commissioning the above mentioned programme and similar reports. They are offering the research, and more importantly assistance, to those affected by actively seeking women in these situations to contact them and they will see whether they can assist in lodging appeals. This is a positive step forward and they ought to be applauded. Call me cynical but I fear that many of these women with their vulnerable backgrounds and their short sentences will simply get their heads down, serve the time and get out. Appeals take time, some might see it as not being worth it. I hope for a more fundamental review of the whole situation these women find themselves in, prevent them from going to prison in the first place rather than a sticky plaster after the gaping wound has formed. Statistic Source: www.criminalappeals.org.ukhttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/may/are-female-criminals-punished-too-severely/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/may/are-female-criminals-punished-too-severely/Fri, 06 May 2016 00:00:00 There's a first time for everything Solicitor http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/april/theres-a-first-time-for-everything/Providing the legal support for first time home buyers is an absolute pleasure. I meet people of all ages and at different stages of life who have decided to take that first step on the property ladder. It often comes as somewhat of a surprise when I mention the word “Will” to them. The thrill of their property purchase takes the drivers seat as do discussions, or arguments as the case may be, on colour charts, wallpaper and what furniture to buy! Many first time buyers are young couples at a very pivotal stage in their relationship, the property purchase is their next big step together and a Will is the last thing on their mind. But with one in six couples that live together being unmarried, we need to break down the misconception that Wills only need to be made in later life. What is becoming increasingly apparent is how many young couples either avoid making a Will, or oppose a Will completely. We’ve all been there – young, carefree, feeling invincible. But we are not! Sadly serious injuries, illnesses and death can occur at any age. It is so very important when making that financial commitment in property to consider the bigger picture. It’s the ideal time to discuss what provisions are needed. Death isn’t exactly a hot topic at the dinner table, but if you do not make provisions for your surviving partner/co-owner and you suddenly pass away, they may face a very nasty shock at an already distressing time. In the absence of the deceased having made a Will any property belonging to them, regardless as to whom the property is owned with, or for how long it has been owned, may pass by the intestacy rules which may then result in: • The surviving partner/co-owner receiving none of the deceased’s share of the property! A sad part of the joint adventure which could have been foreseen. • If a couple have children together then the property may pass entirely to the children, which could leave the surviving parent with many unnecessary and potentially conflicting scenarios for the future. • If a couple do not have children, then the deceased’s share in any property may then pass to distant relatives, this could leave the surviving partner having to leave their home immediately if the beneficiaries of that property wish to realise their share in the property straight away. Writing a Will isn’t as daunting or as costly as many people think, and contrary to popular belief, making a Will doesn’t take you one step closer to the end! Think of it like this; consider your car, or home insurance. You opt for that fully comprehensive package because you are aware that situations can happen outside of your control and you want to have peace of mind that financial protection is in place. A Will can be seen in a similar light. It is all about you making those decisions to help ensure that you are protecting what matters most to you should the unexpected happen. There’s a first time for everything – so when you are taking that first step onto the property ladder, take time to consider the bigger picture and think of your future as a new home owner.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/april/theres-a-first-time-for-everything/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/april/theres-a-first-time-for-everything/Fri, 15 April 2016 00:00:00 Have New Drug Driving Laws Been Successful?Solicitor http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/april/have-new-drug-driving-laws-been-successful/Previously the police could only charge a driver on the basis that their driving was impaired because of a drug. In order to secure a conviction at court, they had to prove not only that the driver had a controlled drug in their system but also that the individual was impaired to drive as a consequence of that drug. They would adduce evidence on the physical condition of the driver and any bad driving, poor performance in field impairment tests and blood results demonstrating presence of the drug. They would also have to show that a police doctor had found that the impaired condition of the driver may be due to a drug. As you can imagine, there are many avenues to defend against this charge and we have found the acquittal rate to be high. The new law introduced a list of drugs ( some prescription and some illegal ) that have a prescribed limit for drivers. All the police have to prove now is that you were driving and show that one of those drugs was in your blood at a level above the prescribed limit. Indeed, it would appear that the new law has been successful in achieving higher conviction rates and targeting drug drivers. The Road Safety Minister has welcomed statistics that suggest that Cheshire police have arrested 8 times as many suspected drug drivers than before the law came into force and that once charged, 98% have been convicted. It has also been noted that 50% of the drivers who have been tested for drugs during a national campaign last Christmas have been positive, a figure that the police believe demonstrates how successfully they have been targeting suspects. In all, 931 motorists out of 1,888 tested during the campaign showed positive results. There are defences available if you are charged with drug driving over the prescribed limit and the police and police forensic scientists have to ensure that they follow the appropriate procedures. Errors on their behalf can be fatal to the prosecution case.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/april/have-new-drug-driving-laws-been-successful/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/april/have-new-drug-driving-laws-been-successful/Wed, 06 April 2016 00:00:00 Dogs in England must be microchipped from April 2016Solicitorhttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/march/dogs-in-england-must-be-microchipped-from-april-2016/In April 2016 it will become law in England for all dogs to be microchipped. The new law comes about due to the implementation of The Microchipping of Dogs (England) Regulations 2015 which come in to force on 06 April 2016. This legislation brings England in line with Wales and Northern Ireland where it is already law to ensure all dogs are microchipped. Scotland is due to implement its own microchipping legislation in April 2016 also. Keepers of dogs in England who fail to have their dogs microchipped could fall foul of the law and see themselves receive a criminal conviction by being prosecuted in the Magistrates Court, fined and further ordered to pay costs and surcharges. Certain dogs are exempted from being microchipped such as those under 8 weeks old, dogs certified as working dogs under s.6(3) Animal Welfare Act 2006 (policing , armed forces, emergency services, pest control and hunting) and dogs which have been certified as unfit for microchipping (this must be done by a vet on a special form). It is the responsibility of the dog’s keeper (not owner) to ensure their dog is microchipped. Therefore breeders must ensure that all their dogs are mirochipped before ownership is passed on to another party. If you acquire a dog from a breeder or elsewhere the best advice to ensure that you, as the new keeper of the animal, do not inadvertently fall foul of this criminal legislation is to satisfy yourself that the dog is properly microchipped. You can do this by asking to see the microchip certificate which will contain the following information: • the full name and address of the keeper • where applicable, the fact that the keeper is also the breeder • if the keeper is the breeder and is licensed by the local authority under the Breeding of Dogs Act 1973 • the breeder’s licence number • the name of the local authority by which they are licensed • the original name or identification number given to the dog • the contact telephone number (if any) for the keeper • the name given to the dog by the keeper • the sex of the dog • the breed of the dog, or a description if it is a cross-breed • the colour of the dog • the most accurate estimate of the dog’s date of birth which the keeper is capable of giving; and • the unique number of the microchip implanted in the dog. It is also the responsibility of the keeper of the dog to ensure that all these details are kept up to date. Therefore if the keeper’s details change then the microchip must be updated. It is in the interest of the outgoing keeper to ensure this is done on or immediately before keepership is passed over. The purpose of this legislation is to assist the authorities with reuniting dogs with owners in the event that they become separated. It is also to assist law enforcement to identify the keepers and, ultimately, those with criminal responsibility for dogs that are deemed to be dangerous, dangerously out of control or which ought to be made subject to control orders. This could see more dog owners prosecuted and more dogs destroyed courtesy of the Dogs Act 1871 and Dangerous Dogs Act 1991. Anyone who finds themselves in a position where they are being prosecuted or their dog is being threatened with a control order or destruction is strongly urged to seek the advice of a specialist solicitor . In the meantime we only have until 06 April to get our dogs microchipped and it is estimated that there are over 1 million dogs who have still not been microchipped! Microchipping can be carried out at your local vets and costs from £10-£30 - some are even offering the service free of charge. My dog had his done this week, he didn’t flinch and we were in and out in about 5 minutes. Overall it appears to be a relatively pain free and stress free experience for both dog and owner/keeper.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/march/dogs-in-england-must-be-microchipped-from-april-2016/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/march/dogs-in-england-must-be-microchipped-from-april-2016/Mon, 21 March 2016 00:00:00 Divorce - Government announces 34% rise in Court fees Paul Hunt http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/march/divorce-government-announces-34-rise-in-court-fees/The Government has been contemplating increasing Court fees for some time now, the rational being that the court system should help to pay for itself. However, the analysis of the actual administrative cost may be somewhat lower than the new figures for fee rises would suggest. From a Family Law perspective, the most significant fee change will impact on divorce. A divorce petition issue fee will increase by a dramatic 34%, taking the fee from £410 to £550. There has been much opposition to this yet the Government has been notably unresponsive – until this week. Information started to trickle out via emails from local Courts indicating that the petition issue fee will be brought into effect from Monday 21st March. This was notice of less than two working days! For those clients currently going through divorce proceedings, unless they have already made a definite decision and their papers and marriage certificates were available and ready to go by the end of the week, then they will be caught by this increase. This means that they will have to find an additional £140, money they did not think they were going to have to pay previously. Many clients would also have been given advice, correct at the time, by their solicitor of the appropriate fees payable to the court to start their proceedings. Court fees are an unavoidable tax against a captive market. If you want the divorce, or a dissolution of civil partnership, then you have to pay the fee. To slide this out during the latter part of this week, when media attention has been focused upon the budget, raises my suspicion as to whether such tactics were a deliberate ploy. Undoubtedly the Courts will be eager to collect the additional £140 payments from people who did not know this was coming and had no warning to plan accordingly. The timing may also cause further conflict. For example, if a person was hoping to start divorce proceedings on the basis of two years separation and consent and the two year mark fell beyond the 21st March, then there might be pressure to issue a petition straight away on unreasonable behaviour rather than wait for the two years. That can only have the effect of creating unnecessary bitterness and acrimony when in a two year separation divorce there would have been no need to make any reference at all to the reasons for the separation to introduce controversial matters. This is not a matter of a few pounds but a very significant impact upon the budget of a client who is seeking to start divorce proceedings.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/march/divorce-government-announces-34-rise-in-court-fees/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/march/divorce-government-announces-34-rise-in-court-fees/Fri, 18 March 2016 00:00:00 Driverless Cars: The End of Human Error?Solicitorhttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/march/driverless-cars-the-end-of-human-error/The government wants the UK to be at the forefront of this new technology. They believe that the proliferation of driverless cars will have significant benefits: 1) Increase in road safety – over 90% of accidents are caused by human error such as being distracted, carelessness or driving too fast. 2) Reduced insurance claims leading to lower insurance premiums. 3) Social inclusion for the elderly or disabled. 4) A reduction in emissions and fuel efficiency 5) A reduction in congestion Initially the plans are for “highly automated” vehicles in which a driver would be expected to take control of the vehicle at any time. Drivers of these vehicles would still be subject to the Road Traffic Act and could be prosecuted for drink driving , driving without insurance or using a mobile phone etc. The next stage however will be the introduction of “fully automated” vehicles, which will be truly driverless. It has been suggested that we spend on average 6 weeks a year driving. This time could be spent working, watching films or sleeping. Our laws will have to be changed to accommodate driverless vehicles and it will be interesting to see where criminal or civil liability will lie in the event of an accident or incident of bad driving. Testing has been authorised in Bristol, Coventry, Milton Keynes and Greenwich and I expect that the fleet sector will be at the forefront, perhaps followed by the vehicle rental industry, buses and taxis. Driverless cars are predicted to be a £900 billion industry by 2025 with several major vehicle manufacturers planning for mass production over the next 10 years. Indeed, the Institute of Electrical and Electronics Engineers predict that 75% of all vehicles will be autonomous by 2040. This is not a glimpse of the distant future. Driving as we know it may soon seem as outdated as the horse drawn carriage. In the shorter term we will see driverless cars sharing the road with driven cars. Fully automated cars will be programmed to avoid making wrong decisions but can we be confident that there will be no glitches in the system? We cannot get away from the fact that people will be involved in the design and maintenance of driverless cars. Can we really be sure that human error will be ruled out completely? The manufactures are employing artificial intelligence (AI) experts in the development of driverless cars. U.S. vehicle safety regulators have said the AI system piloting a self-driving Google car could be considered the driver under federal law. Nothing to worry about then? Stephen Hawkins has suggested that AI could spell the end of the human race and that it could take off on its own and re design at an ever increasing rate. He has warned that as we are limited by slow biological evolution, we couldn’t compete and would be superseded. Gridlock on the M6? I hear that a company called Skynet may be involved.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/march/driverless-cars-the-end-of-human-error/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/march/driverless-cars-the-end-of-human-error/Wed, 16 March 2016 00:00:00 The Pop Up Shop (The Future of the Retail Industry?)Lisa Evanshttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/march/the-pop-up-shop-(the-future-of-the-retail-industry)/Pop up retail units have been around for a while and are particularly popular in the U.S. They have started appearing more frequently in recent years - quite literally popping up throughout the UK, especially over seasonal trading periods. Recent statistics have found that the pop up retail unit industry generated a staggering £2.3 billion in turnover in 2015 for the UK alone – equating to 10,500 pop up shops and employing roughly 26,200 people. Although practical and effective as a retail unit – they also have several business advantages for tenants and landlords alike. For entrepreneurs who are trying a new business venture or even entrepreneurs with an established business - the pop up retail unit concept is ideal- providing a fertile retail environment for a minimised financial outlay. Business entrepreneurs can enter into a tenancy agreement with a reduced commitment for a much lower rental fee with their landlord for a pop up retail unit. They can therefore see if the business venture will work before entering into a lengthy and costly lease arrangement. They can keep costs down as the service charges will be much lower for a pop up retail unit than they are for a retail unit. Ultimately the entrepreneur owns the pop up shop itself so they have the freedom to relocate it to wherever they want. The obligations are not as onerous either with a pop up retail unit, for example, repair obligations will be minimal, there won't be landlord’s fixtures to replace and the tenant will be less likely to have a huge dilapidations schedule at the end of the term. These types of advantages benefit established businesses as they can try a new location or new products by setting up a pop up shop, and if that is successful they can then look for a suitable long term retail unit. For landlords with an abundance of retail space, pop up shops have many advantages. This includes the opportunity of bringing in tenants who are looking to sell the latest craze product, inevitably attracting customers whose interest has been sparked; which in turn can generate additional custom and interest for the long term tenants and traders who are in the retail units nearby. More importantly for landlords the pop up shop provides the opportunity to generate rental income for what would otherwise be under utilised space -be it the back of the car park or common areas in the shopping mall. If the pop up shop is successful a landlord would also be in a stronger position to convince and tempt the tenant into one of the retail units for a longer term and for higher rental fees. As always whether you are a landlord or a tenant it is key to have legal advice before entering into any commercial contract no matter how low the rent or how short the contractual term.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/march/the-pop-up-shop-(the-future-of-the-retail-industry)/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/march/the-pop-up-shop-(the-future-of-the-retail-industry)/Wed, 16 March 2016 00:00:00 ‘Making a Murderer’ – True-Crime Tale Stirs Up Debate Solicitor http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/march/‘making-a-murderer’-–-true-crime-tale-stirs-up-debate/Is it because I am a criminal lawyer that I have become obsessed with the latest online true-crime documentary, or is it the fact that the world has always been intrigued and fascinated by the drama of crime that has seen the Netflix series, ‘Making a Murderer’ stir up global interest, opinion and debate? Either way, I am hooked! I consumed all 10 hours of the documentary in three days and chances are that like millions of others, you have done the same. In brief, the series follows Steven Avery, from Wisconsin, USA who spent 18 years in prison for a violent sexual assault which it was later proved that he could not have committed. Upon his release, Avery filed a Civil Law Suit for $36 million against Manitowoc County (the area where he lived), its Sherriff and its District Attorney. All appears to be going well for Avery, however what happens next shocked me and millions of others of viewers around the world. Avery is arrested once again and finds himself back behind bars within two years of his release, this time accused of the murder of Teresa Halbach. Avery and his nephew, Brendan Dassey, were both tried and convicted of the crime. This 10 episode docu-series was the brainchild of graduate students Laura Ricciardi and Moira Demos. When they read about Avery they were compelled to document the trial. The series has generated mass publicity and prompted petitions to have Avery’s case reviewed. As a viewer I was a melting pot of emotion ranging from anger and sadness to curiosity and frustration, but above all grateful. Grateful that I am part of a legal system in which I would like to think, would recognise that certain evidence that led to Avery’s conviction would not be admissible in a UK Court. I am often asked by friends “so, do you think Stephen Avery is guilty?” The fact of the matter is that I don't know. Only Avery knows that; but in my opinion Stephen Avery should not have been found guilty in law. The burden of proof in both English and Wisconsin criminal law is on the prosecution. They must prove guilt. The standard of proof is very high in that the prosecution must prove guilt beyond reasonable doubt. This means that if a Jury believes that the defendant may be guilty, is more than likely guilty or even probably guilty, that they must acquit. A person can only be guilty of an offence if the Crown can prove, so that a Jury is sure beyond a reasonable doubt that the defendant has committed it. The true crime tale left many questions unanswered and in my opinion this creates doubt, and with such doubt the pragmatic lawyer in me questions whether Avery should have been convicted at all? Let me elaborate; Firstly, there is Theresa Halbach's car. Why would Avery go to the endeavour of burning Halbach’s body only to leave her car intact on his land? Avery lived on a scrap metal yard and had access to an industrial car crusher. If he went to the effort and trouble of burning Halbach's body, why didn't he take the time and effort to also crush her car rather than leaving it in the poorly camouflaged state in which it was discovered? Secondly, the lady who discovered the vehicle on Avery’s vast land located it in a very short amount of time. She was the only member of the search party who also (coincidentally perhaps) had a camera. This all came following the rather suspicious ‘911’ call from a police officer who (before the vehicle was discovered) called in quoting the vehicle registration number, make and model asking if that was the vehicle that he should be looking for. Had he discovered the vehicle at this point? Was it on Avery’s land at this point? I seem to recall that this officer was indeed also from the Manitwoc police department which at the time of course was the defendant in Avery’s civil suit. Thirdly, Avery lived in a static caravan (or a ‘trailer’ for those across the pond) which was searched for seven days by trained police officers from neighbouring Camulet County (as of course Manitwoc officers should not have been involved in the investigation due to Avery’s previous wrongful conviction). No evidence was found during this extensive search. Then again, coincidentally perhaps, on the eighth day officers from Manitwoc County entered the trailer and all of a sudden Halbach’s car key is discovered on the floor! How did Camulet officers fail in discovery? Not long after the expelled Manitwoc officers entered the trailer the key was discovered by officers and this formed a large part of the case against Avery. Let’s move onto DNA evidence, or should I say the lack of it. DNA evidence forms a vital part in many serious cases in English law. It can be found virtually everywhere, not least where by a violent and allegedly sexually motivated murder has taken place. It was the State's case that Theresa Halbach had been murdered in Avery’s garage. Brendan Dassey however ‘confessed’ that actually Avery had killed Halbach in his bedroom and that she had been sexually assaulted before being killed. If either of these things had happened, one would assume that there would be a significant amount of blood and DNA at these locations. Indeed the expert witness who gave evidence at trial said that as an expert, he could not have carried out a “clean up job” as good as Avery would have had to, if he had indeed killed Halbach in either of these locations. This in itself raises doubt that Avery killed Halbach. Watching Brendan Dassey’s confession was particularly emotive. I often represent vulnerable clients, so my sorrow, horror and shock when watching Dassey’s ‘interrogation’ struck a chord with me. The persistent interviewing by officers which eventually led to his confession would not have happened in England or Wales. Dassey was repeatedly interrogated over several days alone. He had learning difficulties and in addition to having no legal representative or parent present, he was interviewed by experienced police officers without an intermediary (or Appropriate Adult as we call it here) in attendance. Dassey continually denied any knowledge of Halbach’s disappearance until he eventually confessed to being involved in her murder as he later revealed to his mother that the detectives “got to him”. Dassey was convicted on the basis that Halbach had been murdered in Avery’s bedroom. At Avery’s trial, it was the prosecutions case that she had been killed in the garage. Which was it? In the documentary, viewers then saw a polystyrene box being brought out of archive, and placed on a table. It is clear for all to see that the tape which seals the box has been ripped open, and furthermore that the vial of blood has a pin prick hole in the top and has obviously been injected into. Why has this happened? Who has done this? For what purpose? It was alleged in the documentary that the few tiny specks of Avery’s blood found in Halbach’s car could have come from this vial, but no traces of the substance which preserves blood in it’s liquid form was found in the vehicle. For me however this still does not sit right, and I still find the ‘tampered with’ blood very suspicious indeed. In my opinion alone each one of these factors may not be enough to raise reasonable doubt, but together having considered them there is no question that in my mind I simply unsure that Avery was Theresa Halbach’s killer. There are other things which the Jury would have placed emphasis on. The fact that Avery did not give evidence, that he was the last person to see Theresa Halbach alive, the fact that her bones were found on his land, and the fact that whilst Avery’s defence team can could challenge the prosecution case on Avery’s behalf,, they can not give evidence, an explanation or an account on his behalf or for him. Making a Murderer makes for compelling viewing, the world is talking about it and asking “do you think Stephen Avery killed Theresa Halbach?” My answer would be that had I been on the jury, I would have had a doubt as to whether or not he did and therefore would have not been able to convict him of murder. However, only one living person knows for sure whether Stephen Avery killed Theresa Hallbach and that’s Avery himself.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/march/‘making-a-murderer’-–-true-crime-tale-stirs-up-debate/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/march/‘making-a-murderer’-–-true-crime-tale-stirs-up-debate/Tue, 08 March 2016 00:00:00 Court Closures Impact on Family CourtsHannah Bibbyhttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/march/court-closures-impact-on-family-courts/In July 2015 it was announced that there would be a consultation regarding the proposed closures of 91 courts in England and Wales. That consultation has now come to an end and the result was published on the 11th February 2016. Unfortunately, the outcome is that 86 of the proposed 91 courts are to close. Following the consultation - five courts in the Merseyside and Cheshire area will close. These courts are; • Runcorn (Halton) Magistrates Court • St Helens Magistrates Court • Macclesfield Magistrates Court • Macclesfield County Court • Warrington County Court Family cases that would previously have been heard in the Macclesfield County Court will now be moved to the Manchester Family Court and family cases that would have been heard in Warrington have now moved to the Liverpool Family Court. The closure of these courts will have a huge impact on the day to day running of Family Law cases. The Liverpool based Family Court is already busy, with it often proving difficult to find a private consultation room, hearings running over and the lack of available refreshments. The extra cases involving family issues which will now be heard at the Liverpool Family Court due to the closure of Warrington County Court may only serve to exacerbate the situation. Not only will there be difficulties whilst at the court itself but the closure of the local courts will mean that for many people their local Family Court may now be almost an hour’s journey away from them. This will no doubt mean that people will be put off from making a family law application due to the extra travel involved, and the inevitable increase in the cost of travel. However, Shailesh Vara, Parliamentary Under-Secretary of State for Justice, Minister for the Courts and Legal Aid stated that 97% of citizens would be able to reach their nearest court within an hour by car. This remains to be the case on the surface but the longer term repercussions for sensitive family cases may only increase the stress and strain for families whilst in court.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/march/court-closures-impact-on-family-courts/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/march/court-closures-impact-on-family-courts/Sun, 06 March 2016 12:00:00 Are Civil Partnerships Becoming a Thing of the Past?Paul Hunthttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/march/are-civil-partnerships-becoming-a-thing-of-the-past/A heterosexual couple has been unsuccessful in their attempts to take the Government to Court regarding the making of civil partnerships available for straight couples. Their argument has been that they do not wish to be married as they take the view that marriage has too many historical and out of date connotations for the roles that men and women play. A civil partnership however is only available for persons of the same sex so they have claimed therefore that they are being discriminated against by not being permitted access to this form of legal status for their relationship. Although they indicated intention to appeal, at this point, they have been unsuccessful in making their case. The view of the Court is that they have not in reality been discriminated against because a form of legal relationship, i.e. marriage is available to them which contains all the necessary elements for status and protection also available in civil partnership. The case does highlight the approach to civil partnerships generally. These were introduced by the Civil Partnership Act 2004 and at the time were regarded as something of a half way compromise for same sex couples who wanted to put their relationship on a legal footing but were not permitted to marry. The reality is that same sex marriage is now permitted by law and it can be argued that in some way the civil partnership has become redundant and should be assigned to a foot note of history. The Government has expressed reluctance to enter into the expense of extending civil partnerships to opposite sex couples and the status of civil partnership in general will become no longer available to anybody and will be phased out. It is interesting however that other statistics appear to indicate that there has been no rush to convert existing civil partnerships between same sex couples into marriages. In this case, the objection to marriage rather than a civil partnership seems to be based on ideology; the Court has not taken the view that this is sufficient to demonstrate genuine discrimination. Ultimately, of course marriage is what you make of it. It does not matter what men and women did a century ago or even a decade ago. You can make your own rules.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/march/are-civil-partnerships-becoming-a-thing-of-the-past/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/march/are-civil-partnerships-becoming-a-thing-of-the-past/Fri, 04 March 2016 00:00:00 The Battle Against Fraudulent Personal Injury ClaimsJames Barkerhttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/march/the-battle-against-fraudulent-personal-injury-claims/In the past few weeks there have been articles on websites, newspapers and even on the television about the recent convictions for instigators of “cash for crash” schemes; South Wales, Chester and other areas across the UK have reportedly been targeted by such schemes. The fight against personal injury claims has been publicised more prominently over the past few weeks and has coincided with the Government’s recent plan to abolish whiplash claims. Insurers are now quite rightly taking a strong stance on those who feel that they can financially benefit from fraudulent schemes of this nature by requesting that those who try and make money from personal injury claims are referred to the High Court for sentencing or to ask for police involvement. As a Personal Injury Claimant Solicitor I certainly welcome their approach and the more that can be done to eliminate fraudulent claims for personal injury such as whiplash and accidents in the workplace - the more beneficial this will be to genuine claimants across the country. As the nations negative perception of personal injury claims gradually change, genuine victims of accidents through no fault of their own may be more willing to put forward their claims without fear of prejudice or judgement. At Kirwans, we adopt a robust vetting policy to try and ensure that all claims for personal injury are genuine - this includes making checks with a database to see if a Claimant has made a previous fraudulent claim for damages. Furthermore, the Courts are now adopting a stance whereby if a claim is found to be dishonest the Claimant can be punished financially and even have committal proceedings commenced against them which could result in imprisonment. More and more is therefore being done to tackle dishonest claims for personal injury and hopefully the procedures adopted by both Claimant Solicitors, Defendant’s Solicitors and the Courts will help to deter those people who decide to make fraudulent and dishonest claims. This will hopefully separate the truth from fiction and will ultimately eradicate the negative media and public perception of personal injury claims, which in its essence was established to ensure that the public are protected and safe from harm in both the workplace and in their day to day lives.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/march/the-battle-against-fraudulent-personal-injury-claims/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/march/the-battle-against-fraudulent-personal-injury-claims/Fri, 04 March 2016 00:00:00 Government Announces Prison ‘Overhaul’ Marcela Salterhttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/february/government-announces-prison-‘overhaul’/The Government has declared its intention to reduce reoffending with its latest Prison ‘overhaul’ statement. David Cameron recently announced that Governors would have autonomy over the operation and budgets of their prison. However the big question is, how will they begin to repair the system to ensure each part of it works as it should? Mr Cameron said; "current levels of prison violence, drug-taking and self-harm should shame us all". Reported statistics indicate that prisons deal with approximately 600 incidents of self-harm, at least one suicide and 350 assaults, including 90 on staff, in a typical week! We have seen examples of prisons across England and Wales being condemned as places that are unfit for purpose, yet the prison population continues to increase. We are now hitting an all time high of 85,000 prisoners held. Penal charities have said that the reforms would fail if prisoners were placed into an ineffective institution with insufficient staffing. The current state of play suggests that a major overhaul is required, yet how such repair and improvements will be implemented remains to be seen. The positive news is that the Governors will be able to manage and allocate their own budgets. This may result in many channeling more funds to develop effective rehabilitation programmes. In my experience in dealing with Post Conviction law, inmates have often said that more vocational training would be best served in order that they learn a trade, all with an objective to gain employment in that trade upon release. This, in my view, would be a positive step forward. Statistics show that 32% of offenders with one previous custodial sentence re-offend, however if opportunities are provided for vocational qualifications employment opportunities become a possibility and could assist in the reduction of re-offenders. Drug rehabilitation is an important area for development. The Government has recognised this as detailed in its report dated 8th May 2015. The aim is to deal with drug abuse inside prisons and provide drugs counselling after release, or when serving a community sentence. It will be vitally important to engage with drug misusing offenders as early as possible within the criminal justice system, from drug testing on arrest through to post-release care. This would demonstrate good working practice if it does bring down reoffending rates in the future. Whilst it is fair to say that prisons are a necessity as a deterrent for those involved in criminal activity, it is also important to have a criminal justice system that not only punishes offenders for their behavior but looks at education and rehabilitation in efforts to prevent future criminal activity. Address unemployment, housing issues, drug and alcohol misuse and break the cycle that many find difficult to do without the advice, assistance and support of specialist agencies.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/february/government-announces-prison-‘overhaul’/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/february/government-announces-prison-‘overhaul’/Mon, 29 February 2016 00:00:00 What penalty could a motorist face for speeding at 80mph in a 30mph zone?Solicitor http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/february/what-penalty-could-a-motorist-face-for-speeding-at-80mph-in-a-30mph-zone/We have all witnessed motorists who have driven in excess of the speed limits on our local roads and motorways in the UK – it is unfortunately a common sight. But what is likely to happen if a motorist has been caught driving at extraordinarily higher speeds than allowed by the law, for example driving at 80mph in a 30mph zone? The Guidelines state that for speeds between 100-110mph on a motorway or 51-60mph on a 30mph road, the court should impose a driving ban of up to 56 days or in the alternative, impose 6 penalty points . However, there are no guidelines for speeds in excess of that. Magistrates are volunteers from the community. In order to try and ensure consistency in approach to sentencing, they use the Magistrates Sentencing Court Guidelines. These guidelines give sentence starting points and ranges based on the aggravating and mitigating factors of each case. S34 of the Road Traffic Offenders Act 1988 states that for an offence that carries a discretionary disqualification (such as speeding and driving with no insurance ), the court may order that the driver be disqualified for such a period as the court thinks fit. This means that they can impose any length of disqualification that they deem appropriate, dependant on the speed and any aggravating features. Over the years motorists have appealed the length of their discretionary ban and here are some examples of the decisions: • A motorbike rider with no current penalty points was convicted at 97mph on a 40mph road – 12 month ban reduced to a 6 month ban on appeal • Motorist convicted for speeding at 87mph on a 40mph road - on appeal the 9 month driving ban was upheld • Motorist was caught speeding at 66mph on a 30 mph road – his 3 month driving ban was found not to be excessive on appeal Of course even where the speed is excessive it doesn’t mean that you will receive more than a 56 day ban or that it is impossible that you would instead receive 6 penalty points. The court will consider the presence of any aggravating features. This may include: • Poor road or weather conditions • LGV, HGV or PSV etc • Towing a caravan or trailer • Carrying passengers or a heavy load • Driving for hire or reward • Evidence of unacceptable driving • Offence committed near a school • High level of traffic or pedestrians in the vicinity They will also consider your personal mitigation and in particular, the impact that a driving ban would have on you and those around you. The presentation of powerful and compelling mitigation to the court is likely to make a significant difference to the length of the driving disqualification.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/february/what-penalty-could-a-motorist-face-for-speeding-at-80mph-in-a-30mph-zone/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/february/what-penalty-could-a-motorist-face-for-speeding-at-80mph-in-a-30mph-zone/Mon, 22 February 2016 00:00:00 Domestic Abuse - A new 'drive' to aid prevention Paul Hunt http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/february/domestic-abuse-a-new-drive-to-aid-prevention/The Government recently announced that a pilot scheme will be tried for an intensive programme called 'Drive', an initiative directed at those who are perceived to be the most serious domestic violence offenders. The implication seems to be that the programme will be directed towards men and of course the point should always be made that there are male as well as female victims, it is not simply a gender issue. The Drive programme intends to target those who are perceived to be most at risk of reoffending. The course will advance on a one to one basis with appropriate assistance given where necessary to deal with drug, alcohol or mental health problems. Some of those responsible for abusive behaviour may have earned this from their own background and may need to be challenged and compelled to face the nature of their behaviour and the effect it has on others. There are “perpetrator programmes “already in place but they can often be very difficult to find unless arranged as part of probation requirements. More often than not they tend to involve group discussion and therapy rather than one to one work. There is a risk that group work does not necessary meet individual needs, and anecdotally there can also be a risk of the members of a group re-enforcing each other’s attitudes and coming away with all the wrong lessons. I am inclined to the view that a one to one approach is always going to be better than group work for this type of situation. Whether this particular programme will work remains to be seen. People can become extremely entrenched in their attitudes and will sometimes participate in programmes and pay lip service because there is a motive either to satisfy a probation service requirement or to tick a box if they are seeking to gain contact with children. Like anyone working in this area of the law I have seen many instances where an abusive partner moves from one relationship to the other repeating the pattern and seeking out new partners, without any indication that they have learnt any lessons, or even want to. On the other hand, I have also seen people who have realised that they are going down a wrong track and have been able to reverse the trend. It is often the case that when matters of this kind are reported in the media there is almost always a hunting down of an extreme case and there is a risk here that we then concentrate on the extremes and sensationalising behaviour when it is so often low key and behind closed doors. To find out more about Drive visit www.safelives.org.ukhttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/february/domestic-abuse-a-new-drive-to-aid-prevention/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/february/domestic-abuse-a-new-drive-to-aid-prevention/Sat, 20 February 2016 00:00:00 Housing Crisis: A perfect storm is brewing Solicitor http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/february/housing-crisis-a-perfect-storm-is-brewing/“Housing Crisis”! “Deposits hit £80,000”! “First Time Buyers priced out of the market”!, scream the latest headlines. It’s little wonder that so many people trying to make the leap onto the property ladder are disillusioned when they are bombarded with the media outcry. However, delve a little deeper and you’ll see it’s not so black and white, there are two sides to every story; Is there really a housing crisis? The answer to this is undoubtedly yes. There is a shocking lack of homes in Britain to meet demand. There is an even greater shortage of affordable new homes for aspiring purchasers. Much of the shortage has been blamed on the Buy-to-Let market, with properties being snapped up by landlords with the intention of renting them to the private sector. However, we cannot ignore that the low level supply of housing has also been contributing to three decades of low level construction. The situation has become a daily news topic, so much so that David Cameron announced a “radical new policy” in January 2016, a policy in which his government would take action to combat the shortage of new homes. This plan of action includes, building on Brownfield sites and creating a “starter home fund” which will be designed to allow at least 30,000 new starter homes, and 30,000 so-called market homes, to be developed on 500 Brownfield sites across Britain. How much?! When I see the figures surrounding house deposits I often double-take! £80,000.00? How on earth does anyone manage to save that amount of money? I know that if I were a first time buyer looking at these kinds of figures any hope I had of owning a home would be lost! However, with average house prices in England and Wales currently at £288,000.00 a usual 10% deposit would mean saving £28,800.00 which although is still a lot of money, is not nearly as eye-wateringly unachievable as some would have you believe. The Government has also recognised the difficulty that First Time Buyers face in getting on to the property ladder and has offered solutions such as the Help to Buy ISA, an initiative which could boost your savings by 25%. No Room at the Inn The latest research conducted by Santander shows that by 2030 one in four London homes will cost at least £1m and the average house price across the rest of the UK doubling. As it is unlikely that wages will rise at the same rate, there is a fear that first time buyers will be locked out of the market. There are however, several initiatives out there for first time buyers needing a little help. The Help to Buy scheme allows a purchase to take place with only a 5% deposit. The reduction in Stamp Duty rates in December 2014 and the Help to Buy ISA scheme are all incentives for taking the leap into property ownership. Amongst all the headlines, there are actually some very positive statistics. The Council of Mortgage Lenders has recently reported several months of year on year growth lending to first time buyers with the strong finish of the housing market in 2015 set to continue this year. A perfect storm is brewing in the housing market and now is the time to take action.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/february/housing-crisis-a-perfect-storm-is-brewing/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/february/housing-crisis-a-perfect-storm-is-brewing/Fri, 19 February 2016 00:00:00 Law of Joint EnterpriseCriminal Defence Solicitorhttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/february/law-of-joint-enterprise/Following the 2014 screening of the BBC One drama “Common”, which was followed up by the documentary entitled “Guilt by Association”, a wave of public opinion and intrigue rose on the subject of the law surrounding joint enterprise. I too was gripped by the BBC drama which subsequently became the backdrop to my blog ‘When A Guilty Person Is Another's Hangman - The Law Of Joint Enterprise ’. I have had the privilege of attending the annual National Miscarriage of Justice events and meeting many families who have been directly affected by the misinterpretation of this law by the Courts for over 30 years. The roots of the misinterpretation of the law relating to joint enterprise dates back to the 1980’s and a case in Hong Kong’s High Court. Chan Wing-Siu, Wong Kin-Shing and Tse Wai-Ming stood trial in the Hong Kong’s High Court for the alleged murder of Cheun Man-Kam. Hong Kong, then being under British rule, based their legal framework on the English common law and as a result the Court applied English law and standards. The Court heard evidence that the three defendants went to the home of a prostitute, Lam Pui-Yin. Two of the defendants went into the kitchen to confront Lam Pui-Yin’s husband while the third defendant prevented Lam Pui-Yin either entering the kitchen or summoning help. The group had attended the home armed with knives. The two men in the kitchen stabbed the victim to death after one shouted "stab him down". The three individuals then left the scene, not before slashing the Lam Pui-Yin before they left, shouting "stab her down too". The jury unanimously found all three defendants guilty of murder, on the direction of the Judge. During the trial the Judge directed the jury to find the defendant who was in the room guarding the deceased’s wife guilty simply on the basis that he was guilty of the same crime as the '”primary killer” as he could have foreseen the possibility that the primary killer might act as he did. This case has been followed by the Judiciary in England and Wales when directing juries in joint enterprise cases until yesterday. This imbalance in the criminal law has led to frequent occasions were innocent individuals have been charged with murder, which carries a mandatory life sentence, taking the life changing decision to plead guilty to the lesser charge of manslaughter rather than risk a life sentence if wrongly convicted of murder. The law in relation to joint enterprise is an enormously controversial area and no doubt public opinion will be split as to whether this is “fair and just”. It is greatly satisfying to me that finally this tremendously controversial area, which has received widespread condemnation by numerous Criminal Lawyers following monumental miscarriages of justice, has been addressed by the countries highest Court, The Supreme Court. Yesterday, The Supreme Court ruled that the law concerning joint enterprise, in which co-accused could be convicted of murder even if they do not administer the fatal blow, had taken a “wrong turn” in the 1980s. This has led to the position where the Crown Prosecution Service could secure a conviction simply by proving that that an individual, or group of individuals, had foresight that the person striking the fatal blow could cause the serious harm that resulted in the death of the deceased. Following yesterday’s announcement the Crown Prosecution Service will now have to prove that an individual has actively assisted in, or encouraged, the killing to secure a conviction for murder. It is important to understand that the result of The Supreme Court ruling will not result in hundreds of convicted murderers launching appeals against their convictions, or that those individuals who have truly participated in criminal activity will go unpunished. It will however mean that there is now a fairness in the way in which the Court approaches this area of law to ensure that true justice is achieved. The intention of the Supreme Court was illustrated by Lord Neuberger who stated: “This does not mean that a person who took part in an unlawful venture.... would go scot-free”. The analysis of yesterday’s ruling will be taking place for some time to come however, for those defendants finding themselves before the criminal Courts, or who have been convicted in these circumstances, the best advice is to appoint an expert Solicitor and Barrister who has had experience in this complex area of law.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/february/law-of-joint-enterprise/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/february/law-of-joint-enterprise/Fri, 19 February 2016 00:00:00 How David Bowie kept his legacy forever intactAnnie Thomashttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/february/how-david-bowie-kept-his-legacy-forever-intact/Many have been shocked and saddened by David Bowie's passing. The world has lost an icon and a revered talent. His tragic death was a sobering reminder of the fragility of life and mortality. However, for an artist renowned for controlling his own destiny, he knew that his estate, established from over 40 years of artistic and commercial success, would need to be carefully managed in the event of his passing. Fortunately, he had the time to write a Will, thus protecting his family, friends and his artistic legacy forever. We still live in an age where many fail to realise that in the absence of a Will, your estate will pass under the rules of intestacy and not in accordance with any wishes you may have. This can result in a situation where your estate could be managed outside of your chosen circle of loved ones. Incredibly, even the rich and famous can fail to recognise the importance of having a Will in place. Here are just a few examples of famous people who have died without a Will, or having an updated Will in place, leaving lingering repercussions that will never be comfortably concluded to the wishes of the deceased... • Jimi Hendrix (1970) and Bob Marley (1981) Family fall outs for years over their respective estates after they had died without leaving a valid Will and arguments still persist as their estates continue to generate money. • Jill Dando (1999) Jill Dando, the TV presenter who was murdered in 1999, was due to marry later that year. However as she had no Will, the law of intestacy applied and her father, in his late 80’s, received her £1.18 million estate and not her husband-to-be. • Princess Diana (1997) Princess Diana decided to do a ‘letter of wishes’ which was attached to her Will to request that her God children receive generous gifts. When she died, her executors (mother and sister) decided that it was no longer appropriate to divide her estate this way , and ignored the wishes of the late Princess. However, legally they had no responsibility to carry out requests through a ‘letter of wishes’. • Heath Ledger (2008) Actor Health Ledger died with a Will, however he had not updated it since 2003 and therefore it did not include his daughter and left his estate to his sisters and his parents. We can be so engulfed with day to day life that often preparing, or updating, a Will is the last thing on our minds. We can often assume that our estate will be safe or that the Courts will make the right decision when managing the distribution of inheritance. But as we have seen with just a snapshot of famous examples – it is not always black and white. Having no Will in place is taking an unnecessary gamble on a lifetime of effort, work and achievement, which may forever go unresolved.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/february/how-david-bowie-kept-his-legacy-forever-intact/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/february/how-david-bowie-kept-his-legacy-forever-intact/Fri, 05 February 2016 00:00:00 Are Electronic Signatures Legally Binding?James Pressleyhttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/january/are-electronic-signatures-legally-binding/This is a question I have been asked a number of times recently. In an age when our consumer habits can be fed with the simple click of a mouse, physically signing our name on a document can seem terribly old-fashioned. In particular, trusted electronic signature brands such as Docusign and Adobe eSign are marketed on the basis that they are legally binding. But are they? The answer, as is very often the case with the law, is: ‘It depends’. Why is this? Well, the law moves slowly but surely. With the fast moving development of the products and services available on the internet, it takes some time for the law to catch up. We are yet to know of the definitive UK court decision as to whether or not ‘signatures’ made using electronic service providers, such as Docusign and eSign, are legally binding. If such a court decision was reached, this could have a major impact, for example you could be signing all your legal documentation for moving house on your tablet whilst in your pyjamas! In the absence of this decision, courts have returned to basic English law principles for a binding contract: Is there an offer and acceptance? For example, I offer to buy your car and you agree to sell it to me; Is there consideration? That being, I pay you money for the car; Is there an intention to create legal relations? Do we both seriously intend that this will a permanent, legally binding sale. If all of the above principles exist, then it doesn’t matter whether there is a signed contract or not. It could, for example, be agreed by shaking hands. Over the years, the courts have found that a number of different types of ‘signature’ were legally binding. These have included signing your name, or just your initials, or even a pseudonym or a code of letters and numbers which identifies you. They have also included a signature on a fax, a rubber stamp, a typed signature, typing your name at the end of an email and even a signature from a signature writing machine (#antique). However, in all these examples, those basic English law principles for a binding contract were present. Without a court decision to that effect, you can’t guarantee that an English court would consider a ‘signature’ given using an electronic signature provider such as Docusign or eSign would be legally binding. The English law does provide for ‘advanced signatures’ by certified providers, which would give an advanced electronic signature verified against your personal identity documents, such as your passport. But, these are cumbersome to arrange and expensive to maintain. And what if your partner goes onto your laptop and decides to make a few purchases while you’re not looking? In a recent German case an online seller through an auction website received emails from three apparent buyers making purchases from him, but the purchase price was never paid. The seller took the buyers to court on the basis that the emails from the buyers were a binding contract with an electronic signature. The buyers claimed they did not send, or sign, the emails. The seller could not prove the buyers sent or typed their names into the emails. The seller lost. It is quite possible therefore, that a verified advanced electronic signature stored in your computer could be used or sent by someone else without your knowledge, with the same effect – the person relying on the contract could not prove it was sent or executed by the other party. What might the future hold? Well, the law changes on 1 July 2016 with the introduction of the EU Electronic Identification Regulation, which applies to English law. This is intended to make it easier for everyone to have advanced electronic signatures using public key cryptography though ‘trusted providers’. I suppose it might catch on this time (it didn’t last time). Personally, my money is on a juicy Court of Appeal showdown between technological innovators, resulting in a clear indication of exactly which electronic signatures we can and can’t trust. Until then, don’t forget your fountain pen.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/january/are-electronic-signatures-legally-binding/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/january/are-electronic-signatures-legally-binding/Tue, 26 January 2016 00:00:00 Poppi Worthington - CPS Case ReviewPaul Hunthttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/january/poppi-worthington-cps-case-review/My attention this week has been drawn towards the devastating case of Poppi Worthington. Poppi was found with serious injuries at her home in Barrow in December 2012 and died in suspicious circumstances at the age of 13 months. Her father, Paul Worthington, 48, was arrested on suspicion of sexual assault but was not charged with any offence. Following the findings of a Family Court Judge the CPS is now reviewing the case. It is understood the case will be re-examined at the highest level. The death of the toddler had been shrouded in secrecy, with a 2014 fact-finding civil court judgement being kept private so as not to prejudice any criminal proceedings. The tragic circumstances surrounding Poppi’s death obviously has a huge bearing upon the future arrangements for her siblings, and particularly whether the father posed a risk to those children. There was a Finding of Fact Hearing in which it was concluded on the balance of probabilities that a particularly unpleasant attack was carried out on Poppi by her father. And there we have the crux of the tension between the criminal and civil standards of proof. In a civil case the Court hears evidence and makes a decision as to what is in the best interests of children; it is not there to secure a conviction. If the Civil Court concludes that one or more persons were specifically responsible for wrongdoing to a child then it will say so, but sometimes this is not possible. Typically there might be an issue as to which parent was responsible for injuries and the Court know that it must be one of them but cannot say for certain which. Making a decision ‘on the balance of probabilities’ is also a much lower standard of proof than is the case in the criminal Courts where the allegation has to be proved ‘beyond all reasonable doubt’. The Civil Court has not tried to secure a conviction but reaches a conclusion that will inform it as to its decisions regarding the welfare of children. It is not at all unusual for the Civil Court to hear evidence about findings in cases where there has been no criminal prosecution. In this particular case not only are we discovering details of the tragic death of a child, which of course is bad enough, but reports suggest and highlight a series of failures within the context of the criminal investigation following Poppi’s death. Mr Justice Peter Jackson, a senior Family Court Judge, first made his ruling about Poppi’s father in March 2014. Upon hearing the fathers appeal he described the Police investigation as ‘cack handed’. There are now calls for the Crown Prosecution Service to look at this matter again and to consider whether it is possible to review the evidence and to consider bringing charges. The problem is that this is an historic case, evidence that should have been collated at the time has gone for good. It is the Judge’s concerns about the shortcomings in the Police investigation that has led to this case being reported. These cases are always extremely difficult. On the one hand it can be argued that it is a matter of public interest that a finding of this kind has been made against a person. On the other hand it is not a criminal conviction. For whatever reason, good or bad, the Crown Prosecution Service and the Police did not feel it appropriate to bring charges. The father protests his innocence. In light of the high profile media attention the public now know who he is, his picture is front page news. The publicity that has arisen from the reporting of the judgement may make it extremely difficult for there to be a fair trial if the CPS does feel that following a review, they have evidence that would justify prosecution.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/january/poppi-worthington-cps-case-review/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/january/poppi-worthington-cps-case-review/Fri, 22 January 2016 00:00:00 Stamp Duty - Act Now or Pay Later?Solicitorhttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/january/stamp-duty-act-now-or-pay-later/As announced in the Autumn statement, April 1st 2016 is to bring about some radical changes in the application of Stamp Duty in residential conveyancing transactions. In an attempt to combat the age old problem of housing stock being purchased by investors and landlords, therefore preventing first time buyers from entering the property market, the changes are set to hit where it hurts...in the pocket! Although the new rules have not yet been finalised, the Treasury has published a consultation paper which outlines how the extra tax will apply. Anyone owning a second property that isn’t their main residence and buying another, or replacing the one they don’t live in, is likely to get caught up in the changes. The new proposals include increasing the existing rates on Stamp Duty by a further 3% from April 1st 2016 on second homes and other additional residential properties. The advantages of this additional tax according to George Osborne is that it will raise £1bn by 2021 which will be used to build 400,000 affordable, new homes to buy as well as rent. Many however believe that this could be the final nail in the coffin for small landlords who could be forced to pass on the additional cost to tenants through their rent payments. The Treasury has published a guide to enable you to check if a purchase of a property by an individual will be liable for the higher rates of Stamp Duty Land Tax (SDLT). The proposed higher rates will be 3 percentage points higher than the current residential rates; Band Existing residential SDLT rates New additional property SDLT rates £0* - £125k 0% 3% £125k - £250k 2% 5% £250k - £925k 5% 8% £925k - £1.5m 10% 13% £1.5m + 12% 15% *Transactions under £40,000 do not require a tax return to be filed with HMRC and are not subject to the higher rates. Exemptions to the new, higher rates include, caravans, houseboats and properties worth less than £40,000.00. Charities and registered social landlords will also escape the hike. It seems that the key to avoiding this extra expense is to act now! If you are planning to purchase an additional home and want to take advantage of the current Stamp Duty calculation rules, then you will need to ensure that your purchase is completed by March 31st 2016. This could be a busy start to the New Year for the property market! Further information can be found at: https://www.gov.uk/government/consultations/consultation-on-higher-rates-of-stamp-duty-land-tax-sdlt-on-purchases-of-additional-residential-properties/higher-rates-of-stamp-duty-land-tax-sdlt-on-purchases-of-additional-residential-propertieshttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/january/stamp-duty-act-now-or-pay-later/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/january/stamp-duty-act-now-or-pay-later/Thu, 21 January 2016 00:00:00 Is this the Beginning of the End for Whiplash Claims?James Barkerhttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/january/is-this-the-beginning-of-the-end-for-whiplash-claims/In November, the Government stated that they plan to bring an end to whiplash claims in the UK - aiming to reduce motorist premiums and closing the door on the so-called ‘whiplash culture’ . But one has to wonder whether the Government has been influenced by the negative and trivial media portrayal of ‘whiplash’ claims and whether this move will even equate to real savings for motorists in the UK on their car insurance premiums? What appears to be forgotten is the potential impact on individuals suffering from whiplash injuries - which in reality is not a trivial matter. When we look at the medical assessment of whiplash we see that whiplash is caused when a person experiences a severe movement in their neck and back when they experience significant physical impact and this can have a devastating impact on an individual’s life. Medical experts have shown that these types of injuries can impact upon victims for months if not years and in some cases can cause permanent problems for victims of whiplash. We recently obtained damages for a client who as the result of a serious Road Traffic Accident will be left with permanent problems in their back following significant trauma sustained in the accident. Under these proposed new reforms this client would have been unable to make a claim for compensation including a claim for the loss of earnings that they sustained as a result of the accident. The Chancellor of the Exchequer George Osborne has stated that he proposes in due course to bring about an end to whiplash claims. They have stated that by bringing an end to whiplash claims this will reduce motor insurance premiums. However, when widespread cuts and reforms were made in respect of Road Traffic Accident claims in April 2013 motorists did not see the promised reduction to insurance premiums. There is also the real danger that the Small Claims Courts may be inundated with whiplash claims as a result of these proposals, which can only exacerbate the current situation. There is no proposed date for the implementation of these reforms and whether this will put an end to whiplash claims is still open to debate. However, if the Government proposals are implemented then thousands of people would be denied compensation for injuries sustained which were caused by others – opening the door to devastating financial scenarios for the victims who may be out of work and unable to continue their day to day life.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/january/is-this-the-beginning-of-the-end-for-whiplash-claims/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/january/is-this-the-beginning-of-the-end-for-whiplash-claims/Mon, 18 January 2016 00:00:00 Are We Heading Towards a Housing Crisis?Danielle Hugheshttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/january/are-we-heading-towards-a-housing-crisis/Things look set to become even more difficult for landlords in the UK. Amidst an evolving legal landscape, property licensing, stamp duty rises and immigration checks, landlords now have to battle against significant tax increases. There is an ongoing Parliamentary Petition for the reversal of the planned tax relief restriction on individual landlords and unless another 48,098 people sign the petition in favour of a reversal before 27th January 2016, the likelihood is that the issue will not be debated in Parliament, and the plans will proceed as set out in Mr Osborne’s summer budget. The consequences of the tax changes could potentially be disastrous for the buy to let market, both for landlords and tenants alike. The changes will prevent landlords from offsetting costs (i.e mortgage cost) against rental income, meaning that some may even have to pay tax where losses have been made. This example from The Telegraph demonstrates how the proposed changes will affect landlords in practice, based on the assumption that a landlord pays 40% tax: Today: Your buy-to-let earns £20,000 a year and the interest-only mortgage costs £13,000 a year. Tax is due on the difference or profit. So you pay tax on £7,000, meaning £2,800 for HMRC and £4,200 for you. By the year 2020: Tax is now due on your full rental income of £20,000, less a tax credit equivalent to basic-rate tax on the interest. So you pay 40% tax on £20,000 (ie £8,000), less the 20% credit (20% of £13,000 = £2,600), meaning £5,400 for HMRC and £1,600 for you. Your tax bill has therefore gone up by 93%. * If for example interest rates rise, this could lead to landlords making losses on their properties. Buy to let landlords will undoubtedly start to sell up and invest their money in more profitable ventures. This would lead to a decrease in the number of rental properties available. Those left in the residential rental market will have little option but to increase rent to offset their increased tax liabilities. This begs the question of how an already struggling population will be able to secure affordable housing? The Guardian reported last week that rent arrears are already on the rise and the Association of Residential Letting Agents (ARLA) agrees that rent will only increase in 2016. So with the future set for increased rent and decreased housing availability, Britain seems to me to be driving full steam ahead towards a housing crisis.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/january/are-we-heading-towards-a-housing-crisis/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2016/january/are-we-heading-towards-a-housing-crisis/Mon, 18 January 2016 00:00:00 Coercive Control – New Law Comes Into ForcePaul Hunt http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/december/coercive-control-–-new-law-comes-into-force/A much anticipated addition to the domestic violence legislations has come into force. The new law, brought into force in England and Wales, follows a Home Office consultation in which 85% of participants said the existing law did not provide sufficient protection. This new addition provides for criminal sanctions for coercive control which stop short of actual physical violence. It comes as Citizens Advice published figures showing a 24% rise in those seeking advice for domestic abuse. It is well known that domestic abuse is not limited to physical attacks. It can include a slow corrosive taking of control of the other party’s finances, relationships with friends and family and a lowering of self esteem to the point of which it is almost impossible to end the relationship. It is right that controlling behaviour is recognised for what it is, but obtaining a conviction is very much going to depend upon the depth and quality of the evidence available. Police Officers may well be used to dealing with cuts and bruises which are an easy form of tangible evidence, but they will have to obtain details regarding a whole pattern of the relationship, such evidence of course has to stand up to scrutiny in a Criminal Court. It may be a little easier if there is proof, for example, that the other party is spying upon the person online or using certain apps or devices that make it possible to carry out a clandestine monitoring of a person’s online activity or phone usage. However, only within the last month the BBC published a story that the Police in England and Wales were on the verge of being “overwhelmed” by massive increases in reports of domestic abuse. We were told that this had led to excessive workloads and had affected the quality and speed of investigations in some forces. This does not bode well if the Police are now in addition going to be required to carry out very careful and detailed investigations in order to seek to prove a pattern of coercive control. This type of abusive behaviour of course also needs to be recognised in areas where there is no criminal offence, especially in the context of family proceedings. A person who has exercised control over their partner is often very adept at presenting a very acceptable face to the public and to the professionals with whom they come into contact in the course of Court proceedings. Proving the reality of a difficult relationship is a challenging task and this has implications for the future arrangements of a child. How this new law will work in practice of course remains to be seen. One might expect some initial enthusiasm on the part of some Police officers to show that they are “on message” but the evidential difficulties in seeking to prove an abusive relationship which does not involve easily ascertained physical injuries will be very considerable indeed. Relationships vary massively and what might be an acceptable way of talking to someone within one relationship would not be for others. There are also people who are perfectly happy for one party to deal with all financial issues and to operate all the relevant bank accounts. There are also people who share email addresses. Not everyone would be happy about that and there is a danger of a dissatisfied ex-partner seeking retrospectively to present this as an abusive relationship. There is the risk of the legislation being used as a weapon for pushing someone into a corner and labelling them as an ‘abuser’ even if the relationship itself was not perceived to be an abusive one at the time, if there is to be a present advantage gained. It will be remembered that convictions under the new law will be domestic abuse convictions which can put the complainant in a position to apply for legal aid for family proceedings.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/december/coercive-control-–-new-law-comes-into-force/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/december/coercive-control-–-new-law-comes-into-force/Wed, 30 December 2015 00:00:00 Lingering questions over the controversial ‘Court Fee System’Solicitorhttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/december/lingering-questions-over-the-controversial-‘court-fee-system’/Less than eight months after it was introduced the UK Justice Secretary, Michael Gove, has announced that the infamous ‘court fee system’ will be scrapped as of the 24th December 2015. On 13th April 2015 the Government introduced the Prosecution of Offences Act 1985 (Criminal Courts Charge) Regulations 2015. This new Act was introduced in an effort to ensure criminals “pay their way” and would see court fees ranging from £150 to £1200. This was met with great resistance and it was argued that it could lead to defendants pleading guilty for financial convenience and reasoning. Gove’s much welcomed decision to abolish the court fee system was announced in an address to the Magistrates Association in central London. Gove stated that, "the basic principle behind the policy – that those who have broken the law should bear some of the costs of running the criminal courts – is right. However, as the Justice Select Committee set out in its recent report, there have been concerns raised about how this has worked in practice.” As a practicing criminal defence Solicitor I have witnessed the impact court fees have had on clients in relation to their plea. When sentencing, Magistrates and District Judges have, in my opinion, appeared almost apologetic for making the Court Charge Order. The fee system certainly hit national headlines and generated debate, so much so that in October 2015 more than 100 experienced Magistrates quit their roles in protest to the hike in court fees. On the abolishment of the court fee system, the Magistrates' Association's National Chairman, Malcolm Richardson said: "This is an enormous success for the MA (Magistrates' Association) but most importantly for justice in our criminal courts system. However, questions still linger over the court fee system. Should defendants pay a court fee for cases handled in the last eight months which the Justice Secretary deems as unjust? And more importantly for the legal system - does the Justice Secretary have anything else in the pipeline which may cause even more confusion and uproar again in the near future?http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/december/lingering-questions-over-the-controversial-‘court-fee-system’/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/december/lingering-questions-over-the-controversial-‘court-fee-system’/Tue, 15 December 2015 00:00:00 More New Borns In Care Paul Hunthttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/december/more-new-borns-in-care/A report prepared by the University of Lancaster has indicated that in 2008 there were 802 babies involved in care proceedings from birth and more recently that number has sadly risen to 2,018. Of these children approximately half were removed from the care of mother’s who already had other children in the care system and a third were from women who became mothers as teenagers. This rising trend will probably come as no surprise to anyone who is involved in these matters but it will no doubt come as something of a shock to the wider public. It is without doubt that separation at birth is a traumatic and distressing experience for a parent. There does however appear to be high incidents of this happening when older siblings have already been the subject of care proceedings. It is not unusual for further children to be born shortly afterwards. The mother might perhaps harbour a vain hope that this time she will be allowed to keep the baby. However, if the circumstances that had led to care orders for older children are still in place and nothing has actually changed then it is inevitable that there will be the same outcome. Turning your life around can be very difficult and is usually impossible to do without professional help and support. But it can be done - as a lawyer acting for parents in care proceedings I have seen dramatic turnarounds. However, the time for demonstrating that previous problems have been addressed is very limited and it is an extremely difficult task if the process only starts when care proceedings are already underway. The Court is required, except in exceptional circumstances, to conclude cases within 26 weeks and there are positive indications that most cases are concluding much sooner than 26 weeks. While a child has a Social Worker it is quite unusual in care proceedings for the parent to have an adult Social Worker to provide the necessary support and direction towards specialist services that would help. The advice for these matters will tend to come from the Local Authority and from the child’s Social Worker but it is inevitable that a parent may perceive them being on opposing sides. Adult Social Services in particular seem to be facing serious problems as a result of general budget cuts and if parents are to fall by the wayside without parent specific support, then sadly we may only see the number of babies being born into care increasing. Note: It is important to remember that Legal Aid is still available for cases that involve proceedings being brought by the Local Authority, except in emergency cases. In such matters there will usually be a pre proceedings stage and one or more meeting(s) taking place with the Local Authority before Court proceedings start and Legal Aid for advice and representation at those meeting is also automatically available.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/december/more-new-borns-in-care/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/december/more-new-borns-in-care/Mon, 14 December 2015 00:00:00 ‘Court Fee System’ to be ScrappedSolicitorhttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/december/‘court-fee-system’-to-be-scrapped/The beginning of December 2015 saw the launch of a new G overnment backed scheme aiming to help those trying to get on to the property ladder for the first time . People struggling to save for their first home are now being offered a help-to-buy ISA which will give them a cash boost towards the deposit on their first home. As with the traditional cash isa, interest will be free of both income and Capital Gains Tax, but the really good news is that the Government will also top up the savings in these accounts. How does it work? When an account is opened a lump sum of up to £1,000 can be deposited. Following this, payments of up to £200 per month can be made into the account until the account reaches a maximum of £12,000. The government will add 25% to the total (up to a maximum of £3000). The bonus is paid on the total amount in the account and will be paid to your solicitor at the appropriate time in the conveyancing process. As the account can only be opened by individuals, if you are looking to buy a property as a joint venture then you will need two separate help to buy accounts. This means however, that the total bonus available to joint purchasers is £6,000! In order to be eligible you must be a first time buyer and aged over 16. You can use it to buy any home worth under £250,000 (or under £450,000 in London) and it can be used with any mortgage. This Government top up of up to £3000 per person could be the key in the door for many first time buyers with the help to buy isas doing their bit to make the new home buying incentive as appealing as possible. It’s certainly beginning to look a lot like Christmas for First Time Buyers !http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/december/‘court-fee-system’-to-be-scrapped/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/december/‘court-fee-system’-to-be-scrapped/Mon, 14 December 2015 00:00:00 Can the UK Emulate Texas' Legal Revolution?Solicitorhttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/december/can-the-uk-emulate-texas-legal-revolution/A recent Panorama episode on the BBC “ Tough Justice in Britain: Texas Style ” gave a fascinating insight into Texas’ criminal justice revolution, where the traditional “hard on crime, hard on sentencing” view is a thing of the past. It was claimed that this revolution had led to the shutting of prisons due to crime rates reducing significantly. The success is based on, in part, the development of specialist courts, zero tolerance on drugs and alcohol, provision of therapy, and a problem solving approach to sentencing, rather than punishment. We were introduced to “Judge Bobby Francis” who, in Dallas County, runs such a court. He, himself, a Conservative Republican, claims 8 out of 10 defendants that pass through his courts “graduate”. Interestingly, he also described taking a “father figure” approach towards the defendants. I learned of our own Justice Minister, Michael Gove travelling to Texas to learn the secrets of their success. Keen to rid the UK of its claim of having the highest imprisonment rate in Western Europe and ½ of prisoners going on to reoffend upon release. He suggested he wanted to introduce specialist courts with a problem solving approach. In my experience as a criminal defence advocate, I was disappointed to discover that the Justice Secretary had clearly not done his homework. In Liverpool, where I practice, 2005 saw the introduction of the Community Justice Centre, the brainchild of David Blunkett. This was a “problem solving” court where a multi agency approach was taken to sentencing defendants, much like Judge Bobby’s court in Texas. Whilst this court still runs, it has now been moved to a different shared court premises, and no longer has on site access to the agencies it did before. The main reason for this seems to be the results did not justify the cost. So, whilst I agree with Michael Gove’s aims, the ideas are not new. Perhaps his time would have been better spent researching his own jurisdiction rather than further afield. The CJC was downscaled due to its expense. The Dallas initiatives worked due to investment as money set aside to build new prisons was used to set up the new courts. In the UK there is no money set aside. I personally don’t think that transforming prisoners from liabilities to assets can be done on the cheap? I would also be keen to learn the views of our Crown Court Judges on becoming “father figures” to the defendants the sentence.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/december/can-the-uk-emulate-texas-legal-revolution/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/december/can-the-uk-emulate-texas-legal-revolution/Tue, 08 December 2015 00:00:00 Can Consent be Retrospectively Withdrawn?Tom Hanlonhttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/december/can-consent-be-retrospectively-withdrawn/With the globalisation of social media and the Smartphone being the ever present medium by which news is accessed; key influencers such as newspapers, websites, magazines, bloggers, freelance journalists and broadcasters bombard us with a constant stream of articles and posts. But sometimes a unique story breaks through the noise which captures the public’s attention and raises important questions and debates. An example of this can be seen with an emotive, divisive and perplexing criminal trial in the North West . In brief, a female defendant posed as a male (allegedly creating an alter ego) and engaged in a sexual relationship with a female. The fundamental confusion in this case - based on the national press coverage and social media activity across Facebook and Twitter - comes down to the basic question, whether the complainant consented? In this case, neither party disputed that the act itself took place. The issue was whether the complainant consented to the act after finding out that her partner was indeed female. This raises the question on whether sexual consent can be conditional and therefore can consent be retrospectively withdrawn after the act itself? When we look at case law we can see that a key aspect of the law can be found in the Sexual Offences Act 2003 which defines sexual consent: A person consents if he agrees by choice, and has the freedom and capacity to make that choice and implies that sexual consent would be invalid if (a) the defendant intentionally deceived the complainant as to the nature or purpose of the relevant act . Through this case law the jury believed that the defendant intentionally deceived the complainant causing consent to be vitiated (invalid), therefore providing that element of the offence. The recent case of R v McNally [2013] EWCA Crim 1051 was a case of similar circumstance and focused on the issue of consent by deception. In the judgment Lord Justice Leveson compared cases where people have engaged in sexual activity where one party has failed to disclose that they were HIV positive and this can affect consent. “In reality, some deceptions (such as, for example, in relation to wealth) will obviously not be sufficient to vitiate consent” and goes onto to say that the evidence relating to ‘freedom’ and ‘choice’ “must be approached in a broad commonsense way”. In the case involving Gayle Newland at the Chester Crown Court, despite any opinions of disbelief or feelings the general public may have about the plausibility of either party’s account of the events, a jury of 12 found the defendant guilty of 3 counts of sexual assault by penetration, approaching the evidence with a ‘commonsense’ view. In this case, the judge identified a clear aggravating feature of the sentence was the creation of an alter ego to manipulate the complainant and to facilitate the deception over a period of years and the judge deemed the appropriate sentence to be one of 8 years imprisonment. In the light of the judge’s decision it would appear that sexual consent can be withdrawn retrospectively and is a decision based on conditional factors. This historic legal precedent could potentially pave the way for an influx of criminal cases based on retrospective criminal actions relating to sexual consent. Note: As of writing this case is still ongoing and the original decision is currently being appealed by the defendant as reported by the BBC News .http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/december/can-consent-be-retrospectively-withdrawn/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/december/can-consent-be-retrospectively-withdrawn/Fri, 04 December 2015 00:00:00 The Court Failed the Oscar Pistorius VerdictSolicitorhttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/december/the-court-failed-the-oscar-pistorius-verdict/It’s the trial that’s captured the fascination of the world’s press and people since it began on 3rd March 2014 – that of Oscar Pistorius and the Valentine’s Day murder of model girlfriend Reeva Steenkamp in Pretoria, South Africa. Eventual sentencing on 21st October 2014 saw the Paraolympian sentenced for ‘culpable homicide’ the equivalent to that of manslaughter in UK law, a decision that was met with mixed reactions with just five years imprisonment. In October 2014 I produced a blog “ Oscar’s English Justice ” based on the original controversial decision of culpable homicide:- “Reflecting on the trial and sentence, two questions arise in my mind; firstly, what likely offence would he have been convicted of, and secondly, what sentence would he have received if the trial was before the English Courts? In my opinion, the inevitable charge at trial would have been murder. The issues for the jury would have been did Oscar intend to kill or cause grievous bodily harm? If sure of these facts a jury could convict of murder. The relevant facts appear to be the use of a gun, that three shots were fired and Oscar’s state of mind. It appears that the first two issues are relevant to his state of mind. Put yourself in the seats of the jury and ask yourself this question - what would you expect to happen if you fired three shots from a high powered firearm into a confined space where you knew another person to be? The answer is surely that you would probably kill them. This uncomplicated approach leads me to conclude that a murder conviction would be likely.” We now learn that the prosecutions appeal against the finding of culpable homicide rather than murder has been successful . This means that Mr. Pistorius will be re-sentenced to a minimum of 15 years for the offence of murder. The decision on appeal appears to reflect the evidence. If you shoot numerous bullets at someone your intention is likely to be to kill them or cause them really serious bodily harm. To paraphrase from my original blog “Put yourself in the seats of the jury and ask yourself this question - what would you expect to happen if you fired three shots from a high powered firearm into a confined space where you knew another person to be?” In my opinion eventually the South African Courts appear to have reached the correct verdict which would mirror how I would see the case unfolding in the UK. However, I must stress that it is extremely unfortunate that the families and loved ones directly affected by this case have had to wait over a year for the correct verdict - I feel that this ultimately is due to the failings of the Courts.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/december/the-court-failed-the-oscar-pistorius-verdict/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/december/the-court-failed-the-oscar-pistorius-verdict/Thu, 03 December 2015 00:00:00 The Dangerous Habit of Lane HoggingSolicitorhttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/december/the-dangerous-habit-of-lane-hogging/It is all too common to see motorway and dual carriageway drivers failing to move into the left hand lane after overtaking. Part 264 of the Highway Code advises motorists that "You should always drive in the left-hand lane when the road ahead is clear”. Many motorists on UK roads don’t see a problem with middle lane hogging and are unaware that by doing so, they may be breaking the law. Some experts also believe that this style of driving leads to congestion on our motorways. There are also statistics that suggest lane hogging can frustrate drivers to the point whereby they admit that they resort to road rage. Indeed, 50% of drivers who took part in one survey suggested that lane hoggers are among the most dangerous drivers on the roads. If so many motorists believe that lane hogging is dangerous, why do significant numbers of people continue to drive in the middle or outer lane, when the lane to their left is clear? Some drivers believe that it is safer to remain in one lane and lack the confidence to change lanes where appropriate. However, motorists who are in the habit of lane hogging now need to be much more aware when driving on multi lane roads, as this year saw the first UK motorist prosecuted for lane hogging. The driver received 5 penalty points and almost a £1,000 fine for the offence of careless driving. A conviction for careless driving can attract up to 9 points or even a disqualification. This would be particularly disastrous for new drivers, who have to retake their driving test when they receive more than 6 points in the first two years of driving. As a consequence of this successful prosecution, Highways England has joined forces with Cheshire Police in implementing a campaign on local motorways. If the campaign is successful, it will be rolled out nationally. In a prosecution for careless driving on the basis of lane hogging, the police must prove that your driving has fallen below the standard expected of a reasonable, prudent and competent driver. The court would look at the prevailing circumstances when the lane hogging took place and any impact it may have had on other drivers on the road at the time. An allegation of lane hogging could have serious implications for your driving licence.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/december/the-dangerous-habit-of-lane-hogging/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/december/the-dangerous-habit-of-lane-hogging/Tue, 01 December 2015 00:00:00 HMO Licence compliance is key for landlords Solicitorhttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/november/hmo-licence-compliance-is-key-for-landlords/Investing in buy-to-let property can be an exciting and profitable venture. As more people look to maximise the return on their property assets, many landlords have opted to rent rooms on an individual basis to multiple tenants rather than to a single tenant. This is referred to as a ‘House of Multiple Occupancy’. These tenancies are occupied by three or more unrelated people, for example students, young professionals or social benefit tenants to name but a few. Although the rewards from investing in such tenancies can be vast the law regulating this area is complex and can at times seem daunting and fraught with pitfalls for even the most experienced of landlords. A HMO is defined as an address which consists of one or more units of living accommodation which is occupied by persons who do not form a single household and who share basic amenities such as a bathroom or kitchen facilities. The Housing Act 2004 introduced licensing for HMOs and standards of management for this type of property which is granted and enforced by the Local Authority. The conditions of HMO licences are detailed and it is the responsibility of a landlord to comply with them and protect their tenants. So what should landlords be aware of? Firstly, it is important to note that the penalties for breaching these conditions can be severe with a possible fine of £20,000 for operating without a licence and unlimited fine for a breach of conditions. Earlier this year a Manchester landlord was fined over £15,000 for failing to renew the HMO licence after he declared it was no longer needed as there were less than five occupants. However following an inspection, eight people were found to be living there. Licence compliance is key to help avoid the prospect of a prosecution. A Local Authority has the power to inspect a property on a regular basis and can apply to a magistrate’s court to obtain a warrant in order to force entry if necessary. In addition, a Local Authority can apply on notice to question landlords over licence conditions and even interview individuals under caution if they believe an offence has been committed. The demand for single rooms as part of a HMO has risen dramatically and many Local Authorities have successfully prosecuted landlords for HMO problems. If you have been accused of breaching a HMO licence condition it is vital to obtain legal guidance at the earliest opportunity, this can help to ensure that any complexities are dealt with from the outset.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/november/hmo-licence-compliance-is-key-for-landlords/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/november/hmo-licence-compliance-is-key-for-landlords/Wed, 11 November 2015 00:00:00 Landlord and Property Show 2015 Danielle Hugheshttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/november/landlord-and-property-show-2015/On Saturday 24th October, we were delighted to exhibit at the region’s largest landlord and property show. We were on hand to offer advice and information for anyone involved in the rental market. For those of you who could not make it – fear not! We have put together a summary of the key issues and discussions from the day. The event provided a fantastic opportunity for me to speak to a number of first-time landlords. It was evident from the majority of new landlords I spoke with that they had real concerns surrounding the recent changes to legislation and ensuring that they have complied with all of the obligations when entering into an agreement. Ensuring that they haven’t overlooked anything was certainly top of their agenda! So, to quickly re-cap on the requirements; from 1st October 2015, landlords need to serve tenants with the following:- 1. Tenancy Agreement 2. Protect the deposit and provide copies of the Prescribed Information from the Deposit Scheme within 30 days 3. An Energy Performance Certificate 4. A Gas Safety Certificate 5. The Government Booklet “How to Rent” For the more experienced landlords, or those with a property portfolio, the hot topic of the day appeared to be the Landlord Licensing scheme which is now in place throughout Liverpool and in some areas on the Wirral. From the landlords I engaged with on the day, there were frustrations regarding the the scheme. It became apparent from the discussions that the requirement to obtain and pay for such a licence in Liverpool could in many ways become a deterrent for those considering investing in property in Liverpool, instead they spoke of areas such as St. Helens and Warrington. Others who already own property in the city confirmed that ultimately they will need to reflect the increase in fees in the rent they charge. The general consensus of people I spoke with on the day is that the majority i.e. the good landlords are having to pay for the mistakes and corruption of the minority i.e. bad and the ugly. I was keen to catch up with members of the Landlord Licensing Enforcement Team at Liverpool City Council at the exhibition. They confirmed that, whilst indeed applications are still being processed (and this will take some time) enforcement work has already begun. I asked whether landlords would be penalised if they make a late application (the deadline was 1st April 2015). They confirmed that at the moment they would NOT sanction a landlord who makes a late application. I suspect this attitude won’t last for very much longer, so the message is - if you haven’t yet got a licence in place, do this immediately and you will hopefully avoid sanctions! Details on how to apply for a licence can be found here:- http://liverpool.gov.uk/business/landlord-licensing/liverpools-landlord-licensing-scheme/ http://liverpool.gov.uk/business/landlord-licensing/liverpools-landlord-licensing-scheme/http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/november/landlord-and-property-show-2015/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/november/landlord-and-property-show-2015/Fri, 06 November 2015 00:00:00 Does the Dock in Court Prejudice Defendants?Solicitorhttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/november/does-the-dock-in-court-prejudice-defendants/In its recent report , JUSTICE [1], the all party law reform and human rights organisation, called for the abolition of the dock and recommended alternative strategies. The findings of this report make surprising and compelling reading. For those unfamiliar with court proceedings, in criminal trials of adults, those remanded in custody will appear in court in a secure glass dock and if they are on bail, they often appear in an open dock rising to waist height. As a criminal defence lawyer I am well accustomed to the layout of the criminal court but have not previously given much thought to the defendant’s positioning and how the physical presence of a dock may influence our subconscious. The latest JUSTICE [1]report considers whether an independent observer would struggle to avoid the impression that the enclosed defendant immediately appears to be guilty simply by being presented to the court in the dock. The dock may be an accepted norm but its use is relatively recent. A requirement to use a dock is not enshrined in our law and a number of other jurisdictions including the US use the dock seldom, if ever. The reasoning behind the relatively recent use is to prevent escape or violence but this is not supported by the evidence. A growing body of academic research demonstrates that the use of the dock impacts on fairness in the criminal trial and is disproportionate to any perceived threat. Within the last 20 years, the docks have become glass walled boxes that project into the courtroom or open docks, dependant on security needs. Today most courts have only secure docks, where defendants are placed whether or not they pose any risk. In its report JUSTICE [1] argue that the defendant’s right to a fair trial is prejudiced by the position in the dock. Effective participation is limited, as it physically distances the defendant from the Judge and Jury and inhibits communication with their legal team. It can also make it harder for the defendant to follow all of the evidence. I read with interest the suggestion that the presence of the defendant in the dock sets him apart as something different and possibly dangerous. An academic study in Australiain 2014 [2] has found compelling evidence to support the contention that when evidence is inconclusive, jury’s are far more likely to convict those in an open or secure dock rather than those sitting with their lawyer. Does the dock then impact on the presumption of innocence? In the US and Netherlands the defendant sits next to their advocate and the actual prevalence of security incidents has been found to be negligible. JUSTICE recommends that the defendant should sit with his lawyer so that they can confer and he can play an active part in the proceedings. This would also remove any subliminal bias based on his position in the courtroom. The report also suggests that where there is potential risk of violence or escape, the Judge could consider an application for concealed restraints. Other security measures proposed, include more security guards in the courtroom and in high risk cases, the jury could instead be separated from everyone else in court by a glass screen. [1] justice.org.uk/wp-content/uploads/2015/07/JUSTICE-In-the-Dock.pdf [2] D. Tait et al ‘The Dock on trial: courtroom design and the presumption of innocence’,http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/november/does-the-dock-in-court-prejudice-defendants/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/november/does-the-dock-in-court-prejudice-defendants/Wed, 04 November 2015 00:00:00 Has the pendulum of justice swung to injustice?Criminal Defence Solicitorhttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/november/has-the-pendulum-of-justice-swung-to-injustice/As a criminal lawyer you become naturally entwined with the role of our Criminal Justice System. I witness the impact it has on the lives of my clients and their families every day, so when the opportunity came to attend the ‘United Against Injustice Annual Conference’ with my colleague, Post Conviction expert, Joe Ely , I knew I had to be there. The event, which was held at Liverpool John Moores University, welcomed representatives from the legal sector as well as individuals who are fighting for justice for their loved ones who they believe have been wrongly convicted of a crime. Their intention is to present valid arguments that the convictions before the Criminal Courts were unsafe for a number of reasons. This can include the use of false confessions, Police misconduct, non-disclosure and issues about the reliability of expert forensic testimony. These can often be cases, which due to their high public profile, have the additional pressure for the Police and the Crown Prosecution Service to obtain convictions quickly to maintain public confidence in the Criminal Justice System. There have been a number of landmark cases which illustrate miscarriages of justice and later found to be unsafe, such as The Guilford Four (1974); The Birmingham Six (1975); The Maguire Seven (1976) and Judith Ward (1974). The event featured a presentation from the Criminal Case Review Commission (CCRC). The CCRC is a publicly funded body that is responsible for investigating alleged miscarriages of justice in England, Wales and Northern Ireland. The Commission embarked upon work investigating possible miscarriages of justice on 31 March 1997. The CCRC has the power to send, or refer a case back to the Court of Appeal if it considers that there is “a real possibility the court will quash the conviction or reduce the sentence in that case". Since its inception and as of 31 September 2015, 599 cases have been referred to the CCRC, of which 397 appeals were allowed. • Of the 579 cases where appeals have been heard by the courts • 397 appeals were allowed and 168 dismissed • 814 cases are currently under review and 507 are awaiting review • So far the CCRC have received a total of 19,963 applications (including all ineligible cases) and completed 18,642 cases. *Statistics source - www.ccrc.gov.uk as at 13.10.15 You may recall the high profile case of footballer Ched Evans which attracted national media attention. Evans was convicted of rape and received a five year prison sentence in April 2012, this case was referred to the Court of Appeal by the CCRC following the submission of new evidence. The primary reasons for miscarriages of justice will always cause debate and split opinion. However, what was evident through the discussions at this event was the necessity of expert evidence in criminal trials which includes cell site analysis and finger print DNA evidence. The presentation of such evidence is no more than a subjective opinion which is at the mercy of the experience and reliability of the expert who in turn interprets the evidence and therefore forms such an opinion. What this event emphasised is the importance for criminal defence lawyers to select the most experienced and appropriate expert to challenge the evidence being relied on by the prosecution.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/november/has-the-pendulum-of-justice-swung-to-injustice/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/november/has-the-pendulum-of-justice-swung-to-injustice/Wed, 04 November 2015 00:00:00 Hide and Seek James Pressley http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/october/hide-and-seek/Does someone else hold your shares in a company on your behalf? That person is called your nominee. You might have done this, for example, because you didn’t want a competitor to know you own shares in a company for personal reasons. But, unfortunately, your hiding place might be about to be exposed by the Small Business, Enterprise and Employment Act 2015. Under the Act, if you own 25% or more of the shares in a company you are called a Person with Significant Control, even if someone you have appointed appears on the share register instead. From April 2016 all UK companies will have to prepare a register of Persons with Significant Control of their companies and file it at Companies House. What is more, with the recent advent of the Companies House Beta service, it will be easy and free for anyone to view this information online. The Act is very comprehensive in cutting out loopholes. UK companies have a duty to make reasonable enquiries as to who might be a Person with Significant Control of their company. You have a duty to report yourself to your company as a Person with Significant Control and failure to do so is a criminal offence. There appears to be no way around this legislation without going very far offshore and operating through a trust. The advice has to be that either you reduce your shareholding below 25% or prepare for the cold light of day.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/october/hide-and-seek/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/october/hide-and-seek/Wed, 21 October 2015 00:00:00 Raising the age of criminal responsibilityZoe Keenehttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/october/raising-the-age-of-criminal-responsibility/Raising the age of criminal responsibility It would appear that this UK Government are quietly planning to raise the age of criminal responsibility from the current age of 10 to the age of 12. There is a bill before the House of Lords which proposes to do just that. There has been no publicity surrounding this and no mention of this in the last election manifesto. Is there a reason the UK Government want to raise the age of criminal responsibility quietly? Having researched the situation further it seems that we have the lowest age of criminal responsibility for children in Europe (save for Scotland which is 8 although a child cannot appear before the criminal court until they are 12) and in fact in most European countries the age is 14 and upwards, even 16 and 18. As a result of that Northern Ireland, England and Wales have the highest number of children in prison in the whole of Europe. The UK Government have faced increasing pressure from the Howard League for Penal Reform (a national charity working towards fewer people in prison) amongst others including the Children’s Commissioner, UNICEF, the All Party Parliamentary Group for Children, the Centre for Social Justice and the Royal Society and the previous Archbishop of Canterbury - who have all recommended that the age of criminal responsibility should be raised to a minimum of 12 years old. Why should we raise the age of Criminal responsibility? The aim for these influential agencies and leading figures is to implement a new legal youth system to replace our existing system of criminalising children. And that we must look behind the reasons that these children offend and try and tackle those issues rather than pushing such young children into a criminal justice system and criminalising them from such a young age. Giving children as young as 10 a criminal record, imprisoning children for lengthy periods - affecting their future opportunity to seek employment and to progress within British society. Or should we? The general public often struggle to imagine young children being before the courts and certainly can never picture them behind bars and no doubt many disagree with the system we have but one only needs to recollect the tragic case of James Bulger in 1993 and to determine if their strong stance on the matter of increasing this age of criminal responsibility remains? I have no doubt that if at that time the minimum age of criminal responsibility was 12 there would have been a public outcry that this horrific criminal case would go unpunished. The tragic case of James Bulger is over 20 years old but will and should forever remain fresh in the minds of the whole British public and the UK Government. This case alone with the public outpouring of anger and emotion only highlights that any changes the UK Government propose to make in relation to the age of criminal responsibility should be taken with serious thought and with an open discussion with the public. This is supported by Lady Butler Sloss, the judge who granted Thompson and Venebles anonymity on their release, who stated that she had sympathy with the views of the childrens commissioner but felt that changing the age would be unworkable due to public opinion. One wonders if this is why the UK Government have not publicised their intentions to raise this age?http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/october/raising-the-age-of-criminal-responsibility/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/october/raising-the-age-of-criminal-responsibility/Fri, 16 October 2015 00:00:00 'Revenge Porn' - Beware Before Your Share Hayley Cooperhttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/october/revenge-porn-beware-before-your-share/Channel 4’s recent documentary on this issue highlighted the increasing prevalence of “Revenge Porn” offences due to the explosion of smart phones and the speed and ease at which digital information (including images and videos) can be transferred and viewed online. The documentary suggested that 46% of young people surveyed had sent a rude text. Many did not consider the privacy aspect and repercussions further down the line. The documentary showed that images the journalist uploaded of herself received 13k hits or views in one day and after 3 days the images had been viewed on 43,000 occasions. This demonstrated how quickly the situation can get out of control in the fast developing digital world. This danger has led to some campaigners to call for tougher penalties, claiming the Criminal Justice and Courts Bill does not go far enough to combat this emerging digital trend. M.P.’s have been asked to close a loophole meaning that victims do not retain anonymity through the court process. There are also calls by experts for sex and relationship education to become compulsory in schools so that issues surrounding consent and respect can be aired and challenged from an early age. In the six months since the legislation was introduced there have been 175 ‘revenge porn’ cases reported to police, involving some perpetrators as young as 12. The figures obtained via a Freedom of Information Request only include data from 18 police forces, just over 1/3 of the police forces in England and Wales and may only be the tip of the Iceberg, also suggesting perhaps the prevalence of this type of crime was grossly underestimated. A number of ‘revenge porn’ cases have now reached sentence in the courts. Despite the new legislation carrying 2 years imprisonment, defendants from 21 to 35 have received sentences ranging from community order through to prison. The majority of sentences appear to have been suspended imprisonment. In a local case on Merseyside, David Jones was believed to be the first person sentenced under revenge porn legislation after posting 12 images taken 20 years ago. He received 3 months immediate imprisonment. Sean Pinkney was sentenced on the 13/08/15 at Manchester Magistrates Court and received 20 weeks immediate imprisonment. I would suggest these cases are receiving attention and being taken seriously by the courts. The difficulty is that in the UK alone there are 30 different pornographic internet sites that focus on revenge porn, quite apart from more commonly accessed social networking sites of facebook, whats app, Instagram and Twitter. I have witnessed the more common social networking sites being used in criminal offences of this type and not the specialist revenge porn sites suggested in the documentary. But this makes the offence no less serious, with experts saying that victims frequently contemplate suicide following disclosure of such images. The figures also suggest that despite the sentences being handed out by the courts, one in five cases are dropped following a complainant refusing to support the prosecution. Only time will tell if legislation really does have an impact. One thing is for sure, this is a topic that is not going away. I hope that by remaining in the media spotlight and generating an increased awareness as a result of the Government Campaign, the message of “Be aware before you share” really does get through and individuals do not find themselves falling foul of the revenge porn legislation in the future.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/october/revenge-porn-beware-before-your-share/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/october/revenge-porn-beware-before-your-share/Thu, 15 October 2015 00:00:00 Tepid Tories approach to Business RatesLisa Evanshttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/october/tepid-tories-approach-to-business-rates/It’s widely acknowledged that the current business rates system requires a dramatic overhaul, and there has been various pre and post election claims in respect of changes that will be made. During his address at the recent Conservative Party Conference, George Osborne announced that the system is going to be overhauled and there will be devolution back to local councils. In 1990 it was a Thatcher Government that decided all business rates would be collected and sent to Whitehall where is would then be distributed. Councils applied for a grant if they required funds to use. Changes in 2013 allowed local councils to retain half and remit the other half to the treasury. It would seem in an attempt to address the business rates system, the Tories have decided that local councils can retain all business rates and utilise the same. They can also reduce rates if they so wish. The merits of this, according to Mr. Osborne, is to encourage new businesses in certain areas and growth especially on the high street. The plan is “attract business, grow your area, and you will grow your revenue too” according to Mr. Osborne Whilst devolution and the potential opportunity to reduce rates may appeal to many, it is important to note that certain councils where there is an elected Mayor can actually increase business rates! For example London and Manchester, although any increase will be expected to be capped at 2%. This is being called a ‘luke warm’ approach by many, including Labour and indeed the Shadow Chancellor, suggesting that some councils may cut their rates more than others in a effort to encourage new businesses to the area. I ask how much thought will be given by local councils to the deficit left by low business rates? How will this affect local business? Will local businesses even be consulted? Indeed, the Shadow Chancellor has commented that “we run the risk of seeing the explosion of Tory tax haven councils” What about the actual overhaul and review of the system itself? Is this radical plan potentially masquerading the fact that the Treasury is still reviewing the system itself and indeed the rate bands, referred to by many as the “finer details” of the reform plan for business rates. The proof will be in the pudding when the Autumn statement is announced in November. At the very least the Tories are dipping their toes in the waters of change but whether they will take the plunge and overhaul this system in a truly radical way for big and small businesses alike remains to be seen.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/october/tepid-tories-approach-to-business-rates/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/october/tepid-tories-approach-to-business-rates/Wed, 14 October 2015 00:00:00 Landlord: Is your Section 21 Notice valid?Danielle Hugheshttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/september/landlord-is-your-section-21-notice-valid/On 1st October 2015, The Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 and related sections of the Deregulation Act 2015 come into force, bringing with them a number of key changes which, if not complied with, could leave landlords and agents unable to recover possession of their property. There appears to have been a lot of confusion around the new rules. So, what are the key changes and how can landlords, and indeed their agents, ensure they are on the right track? Firstly it is important to remember that the new rules only apply to assured shorthold tenancies granted on or after 1st October 2015. After this time, landlords will need to comply with three requirements at the start of a new tenancy. They must supply tenants with; 1. An Energy Performance Certificate; 2. A Gas Safety Certificate; and 3. The Government booklet, “How to rent: the checklist for renting in England”, which you can downloaded here: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/429420/HowToRent210515-digitalprint_May_2015.pdf This is of course in addition to the already existing obligation to protect tenancy deposits in an approved scheme and serve the correlating Prescribed Information on the tenants. Ensure that you keep copies of all documents supplied as you may need these to prove service of them on the tenant further down the line. Even better, ask the tenant to confirm receipt of the documents in writing. In regards to the Section 21 Notice itself, the requirements have in some ways been loosened, in that the Notice no longer has to specifically end on the last day of a period of the tenancy to be valid. This will be a welcome change to those who have fallen foul of the sometimes tricky requirement in the past. However, the new Regulations introduce a number of additional obligations for landlords to comply with before they can serve a valid Section 21 Notice. If the landlord is required to hold a licence for the property, for example as required throughout Liverpool and in certain areas of the Wirral, the failure to have a valid licence in place may render the Section 21 Notice invalid. A further change is that landlords and letting agents will no longer be permitted to serve a Section 21 Notice at the commencement of a new tenancy agreement. Indeed, this has been common practice amongst many industry professionals for a number of years. Under the new Regulations, a Section 21 Notice will not be valid if served within the first 4 months of the tenant’s occupation. Also, tenants will be able to argue that a Section 21 Notice is a ‘retaliation notice’, which if successfully established by tenants will also render the Section 21 Notice void. Landlords should provide an “adequate response” to any written complaint about the condition of the property within 14 days. The key aim of this provision is to prevent rogue landlords from serving notice on tenants as an easy alternative to having to incur the costs and time of carrying out improvements to the property. There are some circumstances under which the provisions will not apply. For example, if the property is on the market for sale, or if the tenant is in breach of their agreement, but this will depend on nature of the breach. The changes will undoubtedly lead to an increase in landlord and tenant litigation regarding the validity of a Section 21 Notice. To avoid such disputes, landlords must ensure compliance with the above requirements and respond adequately to any written complaint from the tenants about the condition of the property. Unfortunately it is yet to be examined as to what an “adequate” response will consist of and indeed, each case will understandably turn on its own facts.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/september/landlord-is-your-section-21-notice-valid/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/september/landlord-is-your-section-21-notice-valid/Tue, 29 September 2015 00:00:00 New Initiative for Domestic Violence VictimsParalegalhttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/september/new-initiative-for-domestic-violence-victims/Recently published reports show prosecutions by the Crown Prosecution Service (CPS) in relation to domestic violence against females have reached record figures with more than 107,000 prosecutions made throughout England and Wales - an increase of approximately 18% on the previous year. It is believed that the rise in reported cases of domestic abuse is a positive result of victims gaining the confidence to come forward and speaking out against their experience of domestic violence. It is thought that in the past domestic violence against women had been under reported but due to the welcomed improvements made by the Police and prosecutors more victims of domestic violence are willing to come forward and to rightly speak out. The emerging crackdown on domestic violence led to the recent news of the Merseyside Police’s Protecting Vulnerable People Unit visiting homes of victims in the Merseyside area which resulted in 14 men being arrested accused of domestic abuse against partners or ex partners. The arrests included cases of rape, sexual offences and domestic violence including alleged offences of choking a woman in front of her children, sending threatening messages to an ex-girlfriend and coercing a partner in to non-consensual sex. Furthermore, in a new pro-active initiative - the Police are to be given specialist training on how to deal with domestic abuse cases - which will enable officers to spot signs of domestic abuse and to ensure that the victims will receive the best support available. Police officers first on the scene, call handlers and counter staff are all to be given training on how to effectively deal with victims when they are contacted about domestic abuse. With the proposed training initiatives it is hoped that more victims of domestic violence will feel secure enough to report incidents of domestics violence and they feel that they are heard, believed and treated with sensitivity and understanding. Although these changes and initiatives are welcomed and it is hoped that this trend of increased support and understanding to domestic violence continues – it will always be the sole responsibility of the perpetrator to stop the abuse and the responsibility of the Police to bring the perpetrator to justice – the victim is not responsible for either.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/september/new-initiative-for-domestic-violence-victims/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/september/new-initiative-for-domestic-violence-victims/Fri, 25 September 2015 00:00:00 First Time Buyer? It's not all doom and gloom!Conveyancing Assistant Solicitorhttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/september/first-time-buyer-its-not-all-doom-and-gloom!/If you ever hear anybody talking about buying their first home it is almost always accompanied by a look of wild excitement and fear. With so much to consider it is no wonder first time buyers have lots of questions about the process. Which house to buy? North facing or south facing garden? Driveway or garage? New-build or flat? Solicitor’s fees, stamp duty, deposit – the list is endless! In recent months there has been a large focus on how hard it is to get on to the housing ladder without a huge deposit, with some predicting that First Time Buyers need to save for almost 12 years before accumulating enough funds to buy their own home! Couple this with the shortage of housing and difficulty in obtaining mortgages and it is easy to see why the process can be challenging. It is not however, all doom and gloom! Recent research shows that first time buying costs almost £700 a year less than renting. Data from Halifax plc showed that in June 2015 the average monthly cost of a three bedroom home was around £666 compared to £722 for renting the same kind of property, a monthly saving of £56! Cheaper mortgage rates, shared ownership schemes and government backed Help to Buy Schemes mean that lending is on the rise. The Council of Mortgage Lenders (CML) said it had seen a 24% increase on the previous month in the value of mortgages taken out by first-time buyers. Add this to the stamp duty changes we saw at the end of 2014 and things are looking up for first time buyers. Getting the right advice is crucial, starting with financial advice, a knowledgeable agent and a helpful solicitor. Preparation is the key. Don’t be afraid to ask questions at each step on the journey to owning your own home. After all, it is probably the biggest financial commitment of your life! To be prepared is half the victory!http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/september/first-time-buyer-its-not-all-doom-and-gloom!/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/september/first-time-buyer-its-not-all-doom-and-gloom!/Fri, 25 September 2015 00:00:00 Domestic Violence & Reluctant WitnessesCriminal Defence Solicitorhttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/september/domestic-violence-reluctant-witnesses/Historically, the police would have been less likely to involve themselves in domestic cases. Often when dealing with complaints they would leave the address putting both parties back in the same position. However, the Crown Prosecution Service (CPS) and the Criminal Courts now view domestic violence cases with zero tolerance. 2015 introduced a specialist domestic violence court, which only deals with domestic violence cases and is based in Liverpool. Domestic violence cases are complex. In a criminal trial the evidence is tested under cross-examination by both the defence and prosecution solicitors. However, recent changes in the law, namely the case of R v Barnaby 2015, has made the process of challenging evidence more difficult. In this case the complainant was a victim of domestic violence and it was reported that there were previous allegations made by her that she subsequently retracted. The complainant made a series of calls to the police reporting the assault and when the police attended on her, the defendant had left the address and the complainant refused to make a statement of complaint. It is important to note that during the course of Barnaby’s trial, the complainant was never called as a witness meaning the prosecution was based on hearsay evidence, which included a telephone call made to the police and the complainant’s comments to the police officers when they responded to her call. As a result of this the defendant’s solicitor could not test her credibility, something which fundamentally goes against the previous rules of evidence which means that someone accused of a criminal offence of this nature will seriously struggle to challenge the prosecution’s case against them. The media headlines featuring Premier League Star Danny Simpson, who was found guilty of assaulting his ex-partner, Stephanie Ward, earlier this year further demonstrates how this change in law impacts on the prosecution. In this case the police attended the complainants address after a 999 call was made. An officer observed the defendant knelt over her on the floor with his hands around her neck. However, Ward did not support the prosecution and was not a witness in the case. The prosecution continued and was based on hearsay and the police officers observations. Danny Simpson was convicted despite the victim refusing to give evidence against him. Given the difficulty of securing convictions in relation to domestic violence the Barnaby case has been largely welcomed as victims of domestic violence are often very vulnerable and reluctant to come to court. However, concerns have been raised in relation to the possible absence of witness based evidence during a trial. In any criminal trial, evidence plays a critical role in establishing fact and allowing members of a jury to make an informed opinion. When trials proceed without a victim there is a real danger for a potentially innocent person to be convicted as the evidence against them cannot be fully tested and challenged in the normal way. The courts will never see the victim, hear evidence being tested in cross-examination nor will they be able to assess credibility. If these cases highlight anything it’s the importance of representation at the police station at an early stage when issues as per the R v Barnaby case can be advised upon from the outset.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/september/domestic-violence-reluctant-witnesses/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/september/domestic-violence-reluctant-witnesses/Thu, 24 September 2015 00:00:00 Easier divorces for Roman Catholics?Paul Hunthttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/september/easier-divorces-for-roman-catholics/Pope Frances recently announced changes to the way in which the Catholic Church will deal with the issue of annulment of marriages. In what is only the third revision of the process in the Church’s 2000 year history, the Vatican is making it easier for Catholic marriages to be annulled as Pope Francis pushes the reform to create a more accessible and less complicated process. The move is somewhat of a dramatic departure from Pope Francis’s more conservative predecessors who made efforts to make annulments more difficult to obtain. The Vatican made it clear that these changes will not encourage or “favour” annulment but the process will become less intimidating. Whilst the new rules do not change the Catholic Church’s position on divorce and communion they do go some way in providing a far more practical approach for remarried Catholics to have their new marriage recognised by the Church. The new rules also affect non-Catholics who are divorced and wish to marry a Catholic. Non-Catholics require an annulment before the Catholic Church will validate the marriage. The breakdown of a relationship and marriage can occur across all religious denominations and the indication is that divorces proceed despite in many cases with the lack of an annulment process. It may well be the situation that the Catholic Church is catching up with the progressive views of its own members. It is worth noting that the annulment process is an internal matter for the Catholic Church and does not operate in England &amp; Wales to end the marriage. The same can be said of divorce processes that arise from other religions. Ultimately it is a Decree Absolute of divorce that ends the marriage with whatever internal processes may have taken place beforehand to satisfy the personal requirements of those involved. There is of course a procedure for applying for a decree of nullity, rather than a divorce, in England &amp; Wales but the grounds for this are very specific and tend to relate to matters that go to the heart of the validity of marriage. For example, lack of consent, duress, and failure to comply with legal formalities, or inability or refusal to consummate the marriage. This does not however coincide with the Catholic Church’s annulment process although there is some crossover. A Catholic Church annulment would be based on the following:- (i) Defective marriage in that the ceremony is invalid such as in the case of two catholic persons being married outside of the Catholic Church; (ii) Lack of intent to enter into a lifelong exclusive union; (iii) Mental incapacity, ignorance or error about the marriage or duress;(iv) Effective capacity, if either party was already married to someone else. The Catholic Church recognises that the divorce procedure is necessary to settle civil matters and child custody but Catholics are not allowed to remarry until the previous marriage has been nullified by the Church. Time will tell whether the Catholic Church will see a rise in annulments. It is possible that if the divorce procedure is simplified then it might be that those who were contemplating a divorce but were put off by a difficult annulment process may now feel able to proceed.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/september/easier-divorces-for-roman-catholics/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/september/easier-divorces-for-roman-catholics/Mon, 14 September 2015 00:00:00 Seeing Is Not Always Believing Paul Hunthttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/september/seeing-is-not-always-believing/As the evolution of technology provides us with greater efficiency and diversity it also opens the door to increasing communication channels; the capabilities of reaching people is vast. A triumph for technology you might say! However, our tech-savvy world has also opened its door to increased opportunities for the exchange of unwanted communications, whether this is an abusive text message or a threatening email for example. This can be particularly prevalent during, or following, the breakdown of a relationship where emotions can run high. I have seen many cases where the inappropriate use of text messages, email, social media, are unfortunately used all too frequently to harass and abuse. Sadly, this is not an unusual situation. I recently represented a client who had been served with a Non Molestation Order. The statement from his wife in support of this contained a great deal of detail regarding threatening and abusive text messages, which she alleged he had sent to her. In her statement she includes specific dates and times of these messages. From the outset, my client denied all knowledge of such messages, and was adamant they were not sent from him. Notwithstanding this he had been arrested and spent time in custody for the alleged breach of the Non Molestation Order. It subsequently transpired that the text messages which appeared to emanate from my client’s phone had alarmingly been created by another person using a downloadable “app”. The fact that such a technological device existed did not appear to be known to the police officers conducting the investigation and also came as a surprise to the Court. This is a worrying development. So many disputes between spouses and parents often result in acrimonious exchanges of text messages. The accessibility of an “app” of this kind can do untold damage and convincing an aggrieved party that they have been the victim of a fraud is no easy task. It is time to be alert to such practices, take nothing for granted and remember, seeing is not always believing!http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/september/seeing-is-not-always-believing/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/september/seeing-is-not-always-believing/Tue, 01 September 2015 00:00:00 Adoption is not forever?Paul Hunthttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/september/adoption-is-not-forever/An Adoption Order is one of the most significant and final orders that can be made in relation to a child’s future. In effect this presses the reset button on parentage so that the birth family, in a legal sense, ceases to exist. The order is intended to provide security and stability for the future of a child; it is in no sense regarded as a temporary or a holding position whilst the birth family address their issues! It is not at all unusual for Adoption Orders to be the result of care proceedings, if it is impossible for either parent to meet all the needs of the child, and if there are no suitable kinship carers. It is only on very rare occasions that applications to revoke an Adoption Order are made. However, developments in a recently reported case have certainly stirred up debate. In this case a 14 year old girl made an application for her own Adoption Order to be set aside. The original order had been made 10 years ago. There had been a serious breakdown between her and her adoptive family, and with threats that she would be sent to live with other adults who would abuse her. In her case, happily, she has been granted an order revoking her adoption and has been reunited with her birth family. It was emphasised repeatedly by the Court that this situation was extremely unusual and it should not be regarded as opening the door to children or anyone else making applications to set aside Adoption Orders. Of course it is not always possible to turn back the clock. In this case, the teenager has gone back to her birth family but suppose that was not possible? If a child had been made the subject of a Care Order with a plan for adoption it was on the basis that the parents were not able to meet the needs of that child for whatever reason. If those problems still exist then the Court would not simply return a child to live with the birth family if that was simply a case of “out of the frying pan into the fire”. In this present case I assume that the Court was happy that her needs would be met within her birth family. A breakdown of an adoptive family could just have easily resulted in further care proceedings, a further placement of one kind or another being sought, either within family members if appropriate or in the case of an older child, long term foster care. What this case demonstrates is an interesting in road into the principal that “adoption is for life”.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/september/adoption-is-not-forever/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/september/adoption-is-not-forever/Tue, 01 September 2015 00:00:00 Should Doctors Report a Driver's Details?Solicitorhttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/august/should-doctors-report-a-drivers-details/A fatal bin lorry crash in Glasgow in December 2014 has brought the requirement for Doctor’s to report health conditions to the forefront. The Fatal Accident Enquiry (FAI), which commenced in Scotland on the 22nd July and is expected to last up to 5 weeks, has heard evidence from Doctors who examined the driver prior to this tragic incident. Reports suggest that the driver, Mr Clarke, suffered a blackout in 2010 whilst employed as a driver with First Bus. Further allegations have been made in relation to Mr Clarke suffering fainting and dizziness. A doctor employed by First Bus stated that if was aware of Mr Clarke’s medical condition he would have advised Mr Clarke that he was unfit to drive and reported him to the DVLA. A drivers medical history can be disclosed to the DVLA at any point if a Doctor believes a medical condition may affect their ability to drive safely. The disclosure of such information can result in your driving licence being revoked. The consequences can be considerable, particularly for those drivers who rely on their driving licence for employment. If your licence has been revoked it can involve a lengthy process to have your licence returned. The General Medical Council do provide guidance on how a Doctor should approach the subject with their patients. One of the recommendations is that prior to advising the DVLA that the driver has certain medical condition, the Doctor should allow the patient the opportunity of obtaining a second medical opinion. This appears to be a fair process that allows a Doctor to raise their concerns and then to provide the patient with the opportunity to challenge the decision. However, should the burden of notifying the DVLA be on medical practitioners or should the burden be on the driver? And should the consequences for failing to notify be considered as so serious that it should result in a severe punishment? You may feel that the trust has broken down with your Doctor, however if they informed you that they had an obligation to report you should you fail to notify the DVLA yourself would you feel less aggrieved as a patient? s92. of the Road Traffic Act 1988 provides requirements for the fitness of a driver. There is also a requirement in s94 that should the drivers medical condition change they must notify the DVLA failure to do so will result in a the driver committing an offence. Interestingly within the Magistrates Court sentencing guidelines there is no guidance for this type of offence. Therefore in light of this catastrophic incident, which saw the loss of six lives, surely now is the time for a review of the requirements and consequences for failing to notify the DVLA. Should the onus of reporting a medical condition to the DVLA now be on the individual? It must be possible to introduce a process whereby a patient is advised by their doctor that they must contact the DVLA to report their medical condition and make the driver aware of the severe consequences should they fail to do so. Controls could be in place should the driver fail to notify the DVLA in a set timeframe. This would take the burden away from medical practitioners and could restore the confidence that what patients tell their doctor is private and confidential. We need to wait for the conclusion of the FAI in Scotland to see if any recommendations are made or if they are critical of the failure to inform the DVLA of the driver’s medical condition. We will assess the judgement after it is released to consider the future implications for drivers and / or doctors.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/august/should-doctors-report-a-drivers-details/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/august/should-doctors-report-a-drivers-details/Fri, 21 August 2015 00:00:00 Football star accused over fail-to-stop crashMotor Law Solicitorhttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/august/football-star-accused-over-fail-to-stop-crash/Everton and Republic of Ireland footballer Darron Gibson is due before Trafford Magistrates’ Court on 1 September after the football star was charged in connection with an alleged hit and run crash with a cyclist. This week’s headlines regarding the incident highlights the severity of failing to stop after an accident and the consequences of not doing so. Accidents on our roads are unfortunately a regular occurrence and whilst they may not always be at fault, many drivers do fail in their duty to stop and report the incident. A plethora of motor law offences can arise from the circumstances surrounding the cause of an accident – in Mr Gibson’s case there is an allegation that he may have been driving with excess alcohol. Often it can be the shock and panic at the incident itself, the fear of the consequences, or the influence of alcohol or drugs as to why some motorists fail to stop, especially when considering how easily further offences can stem from the incident; careless driving and drink driving are two of the most common, and more recently the use of a mobile phone whilst driving. However what is often overlooked, and with many not understood, is the severity of the punishment placed on those found guilty of failing to stop after an accident or failing to report an accident. In the most severe circumstances both of these offences can carry a custodial sentence of up to six months, or the Magistrates can impose an unlimited fine, a discretionary driving ban or between 5-10 penalty points endorsed on the defendant’s license. ‘Failure to stop after an accident‘ occurs when an accident involving a vehicle has taken place and the driver of that vehicle fails to stop at the scene when they are required to do so and does not provide or leave their details. ‘Failure to report an accident’ happens when a driver does not report the accident to the police within 24 hours of the incident in circumstances when they should do so. What’s important to remember is that motorists are under an obligation to stop only if they know, or should have known, the accident took place. This argument is often used as a defence. The driver must demonstrate to the Court that on the balance of probabilities they were oblivious to the accident. When collisions occur as a consequence of our mistakes; whether that is through careless driving, excess alcohol or any other motoring offence, it is always advisable to stop and report the incident and avoid the unnecessary addition of further charges. Time will tell what consequences await the football star.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/august/football-star-accused-over-fail-to-stop-crash/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/august/football-star-accused-over-fail-to-stop-crash/Thu, 20 August 2015 00:00:00 Why are car insurance quotes continuing to go up?James Barkerhttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/august/why-are-car-insurance-quotes-continuing-to-go-up/The car insurance industry has again been in the news this week regarding the “eyewatering” prices that they charge to their customers. Insurers have blamed the increase in claims for whiplash being made. However, recent statistics have shown that Road Traffic Personal Injury claims have decreased in numbers significantly in the past two years. In fact statistics from the Compensation Recovery Unit show that whiplash claims have, in fact, fallen by almost 200,000 in the last four years. This is in part due to Claimant and Defendant Solicitors working towards ensuring fraudulent and dishonest claims are not allowed to progress and are unsuccessful. More and more procedures are being implemented by Solicitors, both Claimant and Defendant, to ensure that only those genuine Claimants receive compensation. Furthermore, legal costs were dramatically reduced in 2013 following further changes to the fixed legal costs which in turn led to a promise that insurance premiums would reduce for customers. Therefore given the hard work of Solicitors in clamping down on fraudulent claims and the cuts to legal costs, questions must be asked why insurance premiums continue to rise.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/august/why-are-car-insurance-quotes-continuing-to-go-up/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/august/why-are-car-insurance-quotes-continuing-to-go-up/Thu, 20 August 2015 00:00:00 'Revenge Porn' - Beware Before You ShareSolicitorhttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/august/revenge-porn-beware-before-you-share/Journalist Anna Richardson will tonight highlight the dangers of sharing sexually explicit images in the Channel 4 documentary, 'Revenge Porn'. Richardson herself has issued a stark warning after she posted nude pictures of herself online as part of a documentary experiment. Whilst revenge porn takes the media spotlight in today’s tabloids, it’s not new! Following the introduction of the Criminal Justice and Courts Act 2015 a specific offence of "Revenge Pornography" has been introduced. Under this new legislation it is now a criminal offence to disclose sexual photographs and films without the consent of an individual who appears in the images and with intent to cause that individual distress. Prior to this specific offence being created various legislation, including the Communications Act 2003, Malicious Communications Act 1988 and the Harassment Act 2007, were in place to criminalise these behaviours. So, what are the main differences between the old and new legislation? The new offence criminalises the sharing of private, sexual photographs or films, where what is shown would not usually be shown in public. Sexual material not only covers showing genitals but also anything that a reasonable person would consider sexual. The big change according to the Ministry of Justice (MOJ) is the sentence; the new offence can carry up to two years imprisonment. However, it is interesting to note that previously offences charged under the Harassment Act already carried the two year tariff! Revenge porn is high on the public agenda. The MOJ has recently launched a campaign to raise awareness of the issue and the Crown Prosecution Service has issued guidance. Whilst this is not a new approach it will provide clarification for prosecutors as to what laws can be used to bring these cases to court. Campaigners on the subject have criticised the new legislation claiming it does not go far enough when considering there is little control as to where the images end up on the internet. They argue there are significant loopholes where cases will fall through the net. For example, photographs edited via various software, such as Photoshop or Illustrator, are not covered under the legislation. Campaigners are also calling for tougher penalties with many believing that placing offenders on the Sex Offenders Register would be a stronger deterrent. In the two years to September 2014 there were 149 allegations of revenge pornography, in the eight police forces who recorded it. Victims were as young as 11 and the majority were women. Only six incidents resulted in a police caution or charge. Only time will tell if this new legislation will make a difference. I, for one, will certainly be watching tonight's documentary with interest.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/august/revenge-porn-beware-before-you-share/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/august/revenge-porn-beware-before-you-share/Mon, 17 August 2015 00:00:00 New Smoking Laws Coming in October 2015Solicitorhttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/august/new-smoking-laws-coming-in-october-2015/The Government has released the new penalties for allowing smoking in private vehicles that are carrying someone under the age of 18. The changes that will be implemented from the 1st October 2015 will provide Police with the discretion to either issue a warning or a fixed penalty notice of £50. This is a significant change to the original proposals of the Government which we covered in an earlier blog Fine or Points. From the 1st October 2015 private vehicles that are carrying persons under the age of 18 must be smoke free. The rules will apply if they are enclosed, there is more than one person present and one of those persons is under the age of 18. Any private vehicle that is enclosed wholly or partly by a roof is considered as enclosed. A convertible car or a coupe which has the roof completely down and is stowed will not be covered by the legislation and they will not be subject to the fixed penalty. However, if a person is driving a vehicle with a sunroof they will be subject to the new legislation and they could be issued with a fixed penalty. Also a person sitting in a vehicle that is enclosed with the door open will be subject to the new fixed penalty. The new rules will also apply to motorhomes, campervans and caravans when being used as a vehicle but not when they are being used as living accommodation. Therefore it would appear that smoking in the open door of any of these vehicles whilst stopped at the side of a road would be subject to the new fixed penalty but not if set up as living accommodation. There is some relief for owners of boats, ships and aircrafts as they are already governed by other rules. Also work vehicles and public transport are covered by the current smokefree legislation. From 1st October 2015 it will be an offence for: • A person of any age to smoke in a private vehicle that is carrying a person under the age of 18 • A driver including provisional drivers not to stop a person smoking in a vehicle that is carrying persons under the age of 18 In the guidance provided by Gov.uk you will not be committing an offence if you are 17 years of age and you are smoking whilst alone in a private vehicle. Therefore when the amendments to the Children and Families Act 2014 are made should the legislation be drafted to ensure that if a 17 year old driver is smoking in a vehicle that has passengers and they are all over the age of 18 they will not be committing an offence? The proposals suggest that they can smoke in a vehicle whilst on their own but as soon as an adult enters the vehicle there will be more than one person and one is under the age of 18 therefore making them subject to the new penalty. We will review the amendments once drafted to see how this will apply. The rules will not apply to electronic cigarettes (e-cigarettes). The proposals will be enforced by the police and they will have the power to apply discretion and issue a warning or they may issue a fixed penalty. In some situations they may refer an offence to court. We will monitor the developments and we will consider the proposed changes in more detail once the changes have been made to the legislation.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/august/new-smoking-laws-coming-in-october-2015/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/august/new-smoking-laws-coming-in-october-2015/Tue, 11 August 2015 00:00:00 Big Money. Big City. Big Sentence Solicitorhttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/august/big-money-big-city-big-sentence/This week saw Tom Hayes, a city trader, sentenced to an eye watering 14 years following his conviction for rigging the Libor interest rates. The sentence is made up of a nine-and–a-half year sentence for offences committed under one employer and four-and-a-half years for offences under another employer when the period offending was much shorter. Tom Hayes was convicted of eight counts under the Fraud Act 2006. If the offences had been committed today he would probably have been prosecuted under The Financial Services Act 2012. The interesting thing here is that under the former Act the maximum sentence for each offence is 10 years with a starting point of seven years for offences with losses in excess of £1m. However, under the latter Act the maximum sentence is seven years with no published guideline starting point. This begs the question, would Tom Hayes have received a lesser sentence if his offences had been committed today? When put into context of offences involving serious violence, terrorism, sex, drugs and firearms, 14 years is a lengthy custodial sentence. Tom Hayes needs to expect to serve seven years behind bars and a further seven years at risk of being re-called back to prison by his probation officer if he fails to comply with his licence. Can we, and should we, expect city criminals to serve a similar custodial sentence to those that cause serious violent and sexual harm? Double figure sentences are reserved for the most serious offences and prolific offenders. For example, those who pose a serious risk to the lives of others and who have a history of offending without rehabilitation. The fact that an offender has been greedy, morally bankrupt, corrupt, and brought a profession into disrepute does not normally form such a large part of the sentencing exercise. Whilst there is absolutely no doubt that harm was caused to those impacted by this sort of dirty dealing it is perhaps incomparable to the physical and psychological harm and hindrance to national security that has been caused by Mr Hayes’ new close neighbours in prison. It will be interesting to see whether or not Mr Hayes’ legal team will launch an appeal against this sentence.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/august/big-money-big-city-big-sentence/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/august/big-money-big-city-big-sentence/Fri, 07 August 2015 00:00:00 Trouble with TrollsAssociate Solicitorhttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/august/trouble-with-trolls/We hear more and more these days about individuals being arrested and charged under the Malicious Communications Act 1988 and Communications Act 2003. Although these Acts have been around for some time it is only with the increase use and exposure of social media platforms, such as Twitter and Facebook, that we are seeing this offence come to the fore. However, public awareness of the offence is still somewhat lacking. Often, individuals don’t realise that they are committing a serious offence and we are seeing a growing number of arrests. The recent convictions of the twitter trolls who attacked Olympic athlete Tom Daley via Twitter has increased public awareness on the dangers of producing forms of malicious communications. Indeed we have seen a number of high profile cases over recent years including the parents of missing school girl Madeline McCann who were viciously targeted on social media as well as Labour MP, Stella Creasy, who was subjected to targeted abuse for almost a year. The twitter troll in this case eventually received 18 weeks custody. Under the Malicious Communications Act 1988 it is an offence to “send or deliver letters or other articles for the purpose of causing distress or anxiety”. Or more simply, it is an offence to send messages to another person which are “indecent or grossly offensive”, threatening or false. This means that any message sent, such as a letter, text message (SMS) and tweets on Twitter or Facebook messages etc. that could be considered indecent or grossly offensive can be an offence under this act. What’s vital to note here is that the message does not have to reach the intended recipient for an offence to occur. Section 127(1) of the Communications Act states that it is an offence to make improper use of a public electronic communications network. This would include sending "a message or other matter that is grossly offensive or of an indecent, obscene or menacing character". Section 127(2) makes it an offence to send messages "for the purpose of causing annoyance, inconvenience or needless anxiety to another". This particular offence can apply to messages sent by email or by other forms of communication. For offences committed under both of these acts you can receive up to six months custody and a fine of up to £5000. It was recently reported that convictions for crimes under a law used to prosecute internet “trolls” have increased ten fold in a decade. In 2014 1,209 people were found guilty of offences under Section 127 of the Communications Act 2003 compared to 143 in 2004. The Ministry of Justice also reveal a similar rise in the numbers of convictions under the Malicious Communications Act. In this day and age of technology and increased access to communication platforms we have to be extra careful about what we post. Even if no harm is intended, it could result in a criminal record and prison sentence.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/august/trouble-with-trolls/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/august/trouble-with-trolls/Fri, 07 August 2015 00:00:00 Court ruling causes debate on future of willsClaire Curriehttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/july/court-ruling-causes-debate-on-future-of-wills/Financial succession planning is often a primary motive for making a will. Having the opportunity to determine where your money goes upon death can bring reassurance and peace of mind that your wishes will be followed. However, a court ruling earlier this week has generated heated debate among legal scholars and the public as to whether the decision conflicts with the legal foundations and the desired purpose of making a will. In this particular case a judge has ruled that an adult beneficiary, Heather Ilott, is entitled to £164,000 from her late mother's estate despite being estranged for nearly 40 years and being cut out of her mother's will. Factors considered by the judge included Heather’s own financial income and that her late mother had no connection with the charities she had specifically named in her will as beneficiaries. There seems to be some indication that had her late mother explained her connection with the named charities and why she had left money to them rather than concentrating on why she hadn’t left money to her daughter the outcome may have been very different. So what impact will this have on the future of wills? Can we still determine that our possessions will be left to those they were intended for or will this case set precedent for future claims of inheritance? This case does not take away the fact that a will is still a necessity to direct where your assets go. However, if you are going to exclude a spouse/child or an individual who is, or may have been, dependant upon you, there needs to be a good reason together with an explanation as to why you have left money to those named beneficiaries in your will. In most cases this is likely to be other children and therefore wouldn't require as full an explanation compared to leaving your estate to a friend or charity. What this ruling highlights is the requirement for expert legal advice when drafting a will. The right legal guidance can ensure that the correct procedures are followed not only in the drafting and execution of the will but also in additional documents enclosed with the will. We may soon see this decision appealed further by the charities that have lost inherited money. I would certainly welcome such an appeal as this decision doesn’t rest easily with me. If you are of sound mind it should remain your prerogative to be able to leave your possessions to whoever you wish. Wills are documents that should have a large amount of certainty in the way that they are written. This court ruling creates a gulf of uncertainty, as a result practioners cannot guarantee that a successful claim is not going to be made against a will. Hopefully it will not lead to a plethora of opportunistic claims and the worst outcome of this decision would be to see an increase in Payment Protection Insurance/No Win no Fee style claims which realistically have no merit.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/july/court-ruling-causes-debate-on-future-of-wills/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/july/court-ruling-causes-debate-on-future-of-wills/Wed, 29 July 2015 00:00:00 Cost of divorce to rise as Government unveils new feesPaul Hunthttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/july/cost-of-divorce-to-rise-as-government-unveils-new-fees/The Government has initiated a consultation regarding the widespread increase of court fees. While most attention will undoubtedly be given to the huge increases for civil claims, those involved in divorce proceedings will also feel the impact. At present the fee payable to the court to issue a divorce petition and process it to a decree absolute is £410, some of us have been around long enough to remember when the fee was in double figures!. Ministers had initially planned to increase the charge by 80% to £750 but have opted for a smaller increase. The plan is to increase the court fee from £410 to £550. When a couple reach a decision that their marriage is over it doesn’t tend to be based on what the court fee will be, that comes later, and usually as an unpleasant surprise! However in light of this recent fee consultation people may now start to assess the financial impact of fees. Indeed, it may well be the case that for those couples who have separated and always intended to get around to the mechanics of the divorce that they begin to consider swifter action to avoid being hit with increased legal fees. It will be interesting to see whether the sector experiences a spike in divorce matters as individuals attempt to save on costs before a new fee structure is in place later this year. It would also seem that the intention is to increase the fee for consent orders from £50 to £100. It is not at all unusual for parties in a divorce to reach agreement about financial and property issues without having to make an application to the court, but it is sensible to ensure that there is no further litigation to obtain an order confirming the terms that they have agreed between them. Even a court fee of £100 is better than having to go through the whole process with the court. These proposed fee increases appear to be part of an overall philosophy that the court should pay for itself and is not simply free (or at least cheap) public service. It can be argued that it should be part of the business of Government to provide an accessible court structure. Discussing the consultation announcement earlier this week, Law Society president Jonathan Smithers said: "All civil cases, from those filing for divorce to landlords needing their property back are affected by these latest punitive increases which are tantamount to selling justice like a commodity, leaving it out of reach for many ordinary people. "This will only serve to widen the access to justice gap in our two-tier justice system”. The increases confirmed this week, expected to come into force later this year, are predicted to generate an extra £60 million a year. When we are told that the non-protected Government departments are expected to devise plans for 40% savings, then so far as the Ministry of Justice is concerned this seems to be an indication as to where some of that money is going to come from.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/july/cost-of-divorce-to-rise-as-government-unveils-new-fees/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/july/cost-of-divorce-to-rise-as-government-unveils-new-fees/Thu, 23 July 2015 00:00:00 The battle behind Britain's front doorsDanielle Hugheshttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/july/the-battle-behind-britains-front-doors/With average viewing figures of over 1.2 million the latest Channel 5 series ‘Nightmare Tenants Slum Landlords’ is proving compulsive viewing. The programme takes a closer look at what happens when conflicts between landlords and tenants get out of control, something which I am all too familiar with in my profession. A recent episode grabbed my attention as it highlighted so many of the situations I deal with on a daily basis for my clients, including landlords taking back possession of their own home. In this particular episode we witnessed the ordeal of a couple who had moved out of their property for a period of two weeks whilst building works were carried out and upon their return found squatters living in their house. Many people who face this situation turn to the authorities for assistance with the Police often being the first port of call. However, in this type of property case the Police unfortunately have very limited powers to intervene and the only recourse available is via the civil courts. The rather unusual twist in this episode is that the squatters were themselves victims of a rogue letting agent, something which isn’t as uncommon as you may think. On the surface everything looks legitimate, agreements are signed and deposits are paid with large sums of money exchanging hands. The scammers quickly disappear leaving innocent tenants out of pocket with little resource to secure alternative accommodation. The Courts have to strike the right balance between protecting victims of scams whilst also preserving the home owners’ rights. This isn’t easy and I don’t envy judges facing pleas from an innocent family facing homelessness after having their savings stolen. Although the people in the property are regarded as ‘squatters’ in the eyes of the law, they still have legal rights to request additional time in the property to allow them time to get back on their feet, particularly where young children are concerned. This is the reason that the property owners have to go though the court procedure. Ultimately, the home owner will get their house back but it may take longer than one would expect! My advice to any home owner in such circumstances would be to seek legal advice from the earliest opportunity to ensure any legal complexities are identified from the outset and to get the ball rolling with issuing urgent court proceedings. As for prospective tenants, it is vitally important to carry out their own due diligence and ensure that they are dealing with a legitimate letting agency before handing over any deposit or advance rent. One way to do this is to contact the Association of Residential Letting Agents (ARLA), which is the regulatory body for letting agents in the UK.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/july/the-battle-behind-britains-front-doors/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/july/the-battle-behind-britains-front-doors/Wed, 22 July 2015 00:00:00 Plea of Convenience?Solicitorhttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/july/plea-of-convenience/Approximately 1.5 million to 2 million criminal cases are dealt with and go through the Magistrates Courts each year. Motoring offences or disorderly behaviour, are dealt with only by Magistrates' Courts. These are commonly referred to as summary offences and carry a maximum punishment of six months in prison, and/or a fine of up to £5,000. The more serious cases such as murder, robbery or rape are classified as indictable offences and can only be dealt with in the Crown Court due to their severity. Crimes such as, drug offences and serious fraud offences, can be dealt with by either Magistrates’ or the Crown Court - these are called either-way offences. Approximately 100,000 cases per year are passed to the Crown Court based on the severity of the offence and approximately 40,000 cases are also passed to the Crown Court because the punishment the Magistrates' Court can pass is not enough to justify the severity of the offence as they lack the requisite powers to sentence. As illustrated above, a lot of cases are dealt with each year through the criminal justice system. A real point of consideration now arises from the Prosecution of Offences Act 1985 (Criminal Courts Charge) Regulations 2015, which introduced a charge that applies to all adult offenders dealt with for offences committed on or after 13 April 2015 except where the offender is sentenced to an absolute discharge or a hospital or guardianship order. It is separate from other financial orders that the court may make such as compensation, a fine or prosecution costs. In addition to the Victim Surcharge the court must order the charge set out in the table below: On consideration of the above table is justice now secondary to the financial position of the accused? Clearly, when advice is given to people accused of a criminal offence the court charge will now be an additional point of consideration for people on a low income. It begs the question “is the right to justice too expensive”? Are defendants now under pressure to plead guilty through fear of costs escalating? With funding for defence solicitors being cut by a further 8.5% in July this year, equating to a total fee cut of 17.5%, and legal aid becoming less accessible, how many unrepresented defendants will plead guilty through financial fear and as a result end up with a criminal conviction? The aftermath of pleading “guilty” can have a devastating impact on daily life for instance difficulties in securing employment, travelling abroad or even renting property. As a practicing criminal solicitor I have come across this problem on a daily basis. People accused of crimes are at risk of a “plea of convenience”, because they simply cannot afford the risk of an additional charge if found guilty. In most cases, if the accused is found guilty the Crown Prosecution Service (CPS) will apply for full costs which can be in the region of £600 plus the courts fine, victim surcharge and now criminal court charge, which you can see in the above table, is very expensive. Below is a practical example of the potential financial impact that would be incurred by those accused of a criminal offence and who have been convicted after trial. The accused is charged with dangerous driving, contrary to s2 of the Road Traffic Act 1968, and has always accepted a less serious offence of careless driving, contrary to s3 of the Road Traffic Act 1968. A trial commences in the Crown Court and the accused is found guilty of driving dangerously. The financial implications could be: • Prosecution costs of up to £900; • The victim surcharge, depending on the overall sentence, of up to £120; and • The new criminal courts charge £1,200. In this example, costs could spiral to £2,220, even before solicitor costs are considered! For those ineligible for legal aid they would also need to factor the additional fees for legal representation. These financial implications could have an overall impact on whether or not they can afford to pay a solicitor for their defence. Due to the current climate, with regards to government cuts in legal aid, this has clearly made it more difficult for individuals to access justice and without proper legal representation there is greater risk to a person accused of a criminal offence to accept a “plea of convenience”, as they simply lack the funds to properly represent themselves at trial. Is a person in this very position getting justice? Or is this another obstacle put in place for proper consideration of the accused when facing a criminal charge?http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/july/plea-of-convenience/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/july/plea-of-convenience/Wed, 22 July 2015 00:00:00 Domestic violence prosecutions on the upParalegalhttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/july/domestic-violence-prosecutions-on-the-up/Recently published figures indicate record prosecutions by the Crown Prosecution Service (CPS) in relation to domestic violence crimes against women and girls. 107,000 prosecutions were made throughout England and Wales, an increase of approximately 18% on the previous year. The prosecutions include statistics of rape, sexual offences and domestic violence. It has been widely recognised that the rise in figures is as a result of victims having increased confidence to come forward. Traditionally violence against women has been under reported but due to ongoing initiatives by the Police and prosecutors numbers are rising. It is also believed that the increase can, in some part, be related to the use of the internet. Not only can the internet be used against victims it can also play a major part of evidence use against a perpetrator, with any online activity leaving a digital trace that can be used by the Police as evidence. This is certainly a positive step and indicates significant progress. Hopefully these figures continue to increase and more victims of domestic violence have the reassurance and confidence to report an incident knowing that their voices will be heard. In this weeks summer budget, George Osborne announced that £3.2m will be available to support women and children fleeing domestic violence. The vital next steps will be to ensure this money is used effectively and that continued national support is available to secure the long term initiatives that will not only assist victims today but will create a sustainable support infrastructure for the future. We must value the specialist domestic violence services in this country and set a blueprint for others to follow.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/july/domestic-violence-prosecutions-on-the-up/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/july/domestic-violence-prosecutions-on-the-up/Fri, 10 July 2015 00:00:00 Has the Tory budget left us 'blue' in the face? Lisa Evanshttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/july/has-the-tory-budget-left-us-blue-in-the-face/We have waited with baited breath; first came the election and now the eagerly anticipated Summer Budget announcement. How will the cuts and spends affect SMEs? SMEs will undoubtedly feel the pinch of the 'New Living Wage' and it appears the loss will not be counteracted by the extension in the 'employment allowance', nor will it be recouped through changes to Corporation Tax as many businesses are just too small to reap the rewards of the latter. Will we experience an adverse affect on the 'Buy British' efforts as many businesses could opt to outsource labour? What would Mary Portas have to say about that! Business rates and business rents did not feature in the budget and have once again been swept under the carpet, with the Government deciding that SMEs would benefit from extending Sunday opening hours rather than restructure business rates and relaxing planning and licensing laws. The Annual Investment Allowance was also decreased from £500,000.00 to £200,000.00 – not exactly welcomed news for our nations SMEs. A new Dividend Allowance could result in business owners actually getting more cash in their back pocket, or will it just lead to bigger accountancy bills as people try to tax plan more effectively due to the changes? It was disappointing to see that there was no relief for ‘buy to let’ landlords, this coupled with the new Licence Fees is a double blow for landlords. On a more positive note, the Government has included new initiatives that could play a vital economic role for SMEs, particularly for northern cities, including Liverpool and Manchester, that will have the opportunity to pitch for the new enterprise zones. This hopefully will stimulate SME growth and start ups as these zones will provide much needed business support and reduced tax. In addition, it was announced that loans and finance will be more accessible for SMEs as the initiative for banks to share information about SMEs is introduced.. Osbourne has said himself "this is a budget for working people", but I sense there will be a level of discontent amongst SMEs at the Government's lack of effort to inspire a sector that played such a vital role to its General Election campaign. Overall, perhaps a disappointing and a 'blue' budget in every sense.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/july/has-the-tory-budget-left-us-blue-in-the-face/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/july/has-the-tory-budget-left-us-blue-in-the-face/Thu, 09 July 2015 00:00:00 Dog Microchipping Will Be Compulsory From April 2016Criminal Defence Solicitorhttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/july/dog-microchipping-will-be-compulsory-from-april-2016/Next year the Microchipping of Dogs (England) Regulations 2014 will come into force, the effect, from the 6th April 2016 is that all dogs aged eight weeks or older must be microchipped and registered on an approved database. This will apply to all dogs unless a vet has certified that the dog cannot be microchipped due to health reasons. If the dog is not microchipped or its keeper does not register their details, a notice may be served on the keeper requiring them to do so. If the keeper does not then microchip the dog within twenty one days they could be liable for a fine of up to £500. If the keeper moves address or changes telephone number without updating the register then the dog will no longer be considered microchipped and enforcement action might be taken against the keeper(s). The keeper of the dog should be mindful that the animal is healthy enough to be implanted and if it is, they should allow sufficient time for the database to process registration before the dog reaches eight weeks of age. It should be noted however that there are already laws in place that require a dog out in a public place to wear a collar with a tag, although these laws are not regularly enforced. Microchipping has many obvious additional benefits to collars: the reuniting of strays with their owners, discouraging illegal dog farming, assisting in the reporting of hereditary health problems and promoting responsible ownership generally. Compulsory microchipping is not proof of ownership however, although the registered keeper is legally responsible for the dog. Microchipping will allow the police, local authorities and prosecutors to more easily identify the person or people responsible for the dog for the purposes of enforcement and bringing prosecutions under the Dangerous Dogs Act 1991, the Dogs Act 1971 as well as all various other pieces of legislation that deals with animal welfare. The UK Government has largely promoted microchipping with reference to how it will assist in dealing with dangerous dogs, an issue that is regularly discussed in the media with strong opinions from both sides of the argument. The Dangerous Dogs Act banned certain breeds of dog and it is said that compulsory microchipping would be a way to monitor this more effectively, both before and after the event. Those who disagree argue that neither the ban nor compulsory microchipping address the issue of responsible ownership, highlighting that a number of dog attacks in the last few years were committed by breeds of dogs that were not in fact banned. It is suggested that keepers of dogs who do not properly train or control their animals are less likely to get them microchipped in any event. If this is the case then perhaps alongside these new laws money ought also to be spent encouraging responsible dog ownership by educating owners and the wider public on how to safely handle and care for our dogs.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/july/dog-microchipping-will-be-compulsory-from-april-2016/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/july/dog-microchipping-will-be-compulsory-from-april-2016/Wed, 01 July 2015 00:00:00 Compulsory Landlord Licencing comes to the WirralDanielle Hugheshttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/july/compulsory-landlord-licencing-comes-to-the-wirral/Just months following the introduction of Compulsory Letting Licences in Liverpool, Wirral has followed suit. The scheme will come into effect in four designated parts of the Wirral from today, 1st July 2015. The designated areas will be Birkenhead South; Egerton North; Seacombe Library and Egremont Promenade South. These areas were identified using research by Wirral Borough Councils performance and public health intelligence team, which identified key areas suffering from low demand i.e. low sales values and high levels of empty homes. The rationale behind this new requirement stems from recent statistics from Wirral Borough Council that reports almost one in three private residential rented properties in the selected areas are failing to meet the basic standards of being regarded as a “decent home”. The main objective of the scheme is to encourage adequate and standardised property management that will create a level playing field for landlords, and lead to the reduction in unoccupied property in the selected areas. It is hoped that the scheme will provide an avenue of support for tenants living in poor conditions and in turn increase stability and “more settled” communities. Whilst there are no excuses for rogue landlords leaving properties in unacceptable conditions there are concerns that respectable landlords, i.e. over two thirds of landlords, who will now need to comply with this scheme, may unknowingly be caught out by the provisions due to lack of awareness. Despite providing and managing decent homes for tenant, landlords that fail to comply with this licence scheme could face fines and even criminal sanctions. The application is a 2 stage process. For further information, and to download the application form to apply for a licence, please visit:- http://www.wirral.gov.uk/my-services/council-and-democracy/have-your-say/consultations/current-consultations/selective-licensing . Remember, as of 1st July, it will be a criminal offence if landlords in these areas do not have the required licence in place.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/july/compulsory-landlord-licencing-comes-to-the-wirral/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/july/compulsory-landlord-licencing-comes-to-the-wirral/Wed, 01 July 2015 00:00:00 Taking Things into Your Own HandsPaul Hunthttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/june/taking-things-into-your-own-hands/The recent case of the runaway mother Rebecca Minnock, sparked a media storm when she vanished with her son at the height of a bitter custody battle. Whilst she has escaped the prospect of a prison sentence, the case itself brings to question the actions of disappearing parents when the prospect of losing contact with their child becomes a reality. This story stems from the transfer of residence that appears to have been ordered following lengthy court proceedings involving the father’s application for contact with his son. Last week a high court judge told Minnock, that she was “manipulative, attention-seeking and truculent” and that keeping three-year-old Ethan from her estranged partner for the 17 days she spent on the run had made victimsTaking things into your of both the boy and his father. It was through the request of the boy’s father that charges against Minnock have been discontinued after she expressed fears about the emotional damage sending her to prison for any breach would cause the child. Like many, I have paid particular attention as the story unfolded. I began to question whether if the boot was on the other foot and it was the father who had abducted the child, would these wrongful actions be roundly condemned with little room for sympathy or presentation as a victim and would the mother be so quick to drop the charges? The surprising element of this case was the mother’s persistent contact with the press whilst she was on the run with her son. Indeed even Judge Stephen Wildblood QC accused her of manipulating the media to further her own case. Rather than pursue her grievances through the courts, Minnock proceeded in generating a media frenzy that placed all concerned under the public spotlight. Was this through her fear of losing residency of her child or were these actions her own ‘self-focus’? Of course we are not privy to all the facts of this case. There is however ultimately no mileage in defying a court order and trying to disappear. The bottom line is that if the parent with care ignores court orders and remains completely obstructive to contact taking place then the court will impose sanctions and taking things into your own hands can have damaging consequences.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/june/taking-things-into-your-own-hands/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/june/taking-things-into-your-own-hands/Tue, 30 June 2015 00:00:00 Alternative Burials - It's ok to be different!Solicitorhttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/june/alternative-burials-its-ok-to-be-different!/As Benjamin Franklin once said “in the world nothing can be said to be certain except death and taxes”, he was right! We will all have a funeral one day, there’s no escaping that fact. I speak with clients who are making wills on a daily basis and funeral wishes are often discussed. Whilst some of us will have definite ideas, the majority of us haven’t given it much consideration. Maybe this is a way of trying to avoid the inevitable, or that we don’t want to feel saddened about considering planning for a time when we will no longer be here. Personally, I have never given the issue much thought; I am far too busy enjoying the present! However, a recent visit to a woodlands burial site soon changed my way of thinking! I’ve always thought burial choices were limited. Generally, tradition plays its part and the vast majority of us will consider a religious or non religious ceremony; church/cemetery burial; or a cremation, and let’s not forget choosing our final resting place. If we are lucky enough, that chosen location will be able to accommodate us when the day comes, if not, then who knows where we will end up! I recently visited GreenAcres Woodlands Burials in Rainford. GreenAcres provide an alternative to the traditional funeral and burial by facilitating the most beautiful and peaceful setting as a final resting place. The burial site is set within acres of beautiful, seasonal changing woodlands, home to both wildlife and wild flora and fauna, offering an alternative to the more conventional burial and cremation options. I learned whilst there that Woodland Burials offer many advantages in terms of sustainability. The use of biodegradable coffins (or no coffin at all) promotes decomposition without contaminating the earth with any harmful substances. The aim is to let the body return to the earth as naturally as possible, and to promote the ‘cycle of life’ while creating a meaningful and beautiful memorial place for loved ones. Naturally, during my visit, I began to consider my own funeral and what I would want. Being a countryside loving, nature enthusiast, I left GreenAcres assured of “this is where I want to be laid to rest”. These days there are so many alternatives, most very practical, some slightly bizarre - but all potentially possible if that's what you want. From burials at your home or at sea, to resomation (bio cremation) and cryomation – it seems nothing is unimaginable when it comes to making decisions about our final resting places. In a time where society is becoming increasingly more ‘eco aware’ it would seem that that even in death, we can lessen our impact on the environment by choosing a more eco friendly way of burial/cremation. Considering the practical arrangements of your burial and final resting place shouldn’t be underestimated. If like me you want to make those decisions and not leave it to others to decide for you, then it’s ok to be proactive about it. If you do have specific ideas, preparing or updating your Will is the perfect place to start. Often a pre-paid funeral plan can also help you ensure that your wishes are carried out when that time comes. Remember, it’s ok to be different!http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/june/alternative-burials-its-ok-to-be-different!/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/june/alternative-burials-its-ok-to-be-different!/Fri, 26 June 2015 00:00:00 Has Our Treatment of Dementia Been Incorrect?Claire Curriehttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/june/has-our-treatment-of-dementia-been-incorrect/There are a reported 800,000 people in the UK being diagnosed with dementia and it is predicted that 1 in 3 people will suffer from this illness in the future. It is likely that in our day to day life we will encounter someone with dementia and we need to collectively understand how to handle certain situations - so we don't demean or take away that person's dignity. At Kirwans we are undertaking a series of dementia awareness programs with Home Instead Wirral to further our understanding of the effects of Dementia. The one thing that has stuck in my mind from my first meeting with Home Instead Wirral was how they explained the changing attitude towards dementia sufferers. The example they gave was that dementia sufferers often asked for their mum or dad because in their mind they are back in a time when those people were alive. The old thinking would have been to tell that person that their mother and father were dead in order to bring them back to the present day. However this was understandably stressful for the dementia patient as they would receive the information like it was the first time they had been told such news - and they would suffer the grief that comes with losing a parent. This could then potentially happen more often or even daily. Home Instead Wirral advised that the better way to handle this situation would not to be dismissive or to tell the patient that their parent had died but to merely state that they weren't there at the moment and was there a reason why they wanted their mum or dad at that point. It may be that the patient wants the comfort or a hug from mum and dad or just the reassurance that things are ok to relieve any anxiety they have. This can then be solved rather than putting the patient through a cycle of grief. This approach was highlighted in the recent Channel 4 documentary, ‘Dementiaville’. The program featured ‘Poppy Lodge’, a care home which was encouraging the use of this approach with their patients. In the programme we were introduced to many of the home’s residents including dementia sufferer Les. Les was a patient in the home, who had lost his father in 1971 and he would frequently ask for his dad. Adopting the new approach, his carer would explain that his dad was away at work and the relief and reassurance for Les was undeniable. The ethos of Poppy Lodge was to see people in the time that they were currently thinking about rather than trying to force them back into the present world. This led to a much more relaxed atmosphere where patients were seen for who they were and not what the illness had changed them into. Little touches took this further such as the staff wearing pyjamas at night time so that it wasn't as confusing for the patients as to what was night and day. There are currently 100 care homes in the UK that are adopting this method and I see no reason why all EMI (Elderly Mentally Impaired) homes should not take the same approach to care giving. This isn't about money as it doesn't cost any more to change the way people are spoken to and are cared for. It is about training and changing perceptions about dementia. At Kirwans we have incorporated a dementia awareness program in association with Home Instead Wirral. This training will provide our staff members with a detailed understanding of dementia and key skills that will assist them when dealing with clients who suffer from the disease and their loved ones. As a business we are committed to a greater understanding of dementia and how we can best support our clients. It’s an approach I would highly recommend to any business that regularly engages with customers/clients where dementia is their reality.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/june/has-our-treatment-of-dementia-been-incorrect/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/june/has-our-treatment-of-dementia-been-incorrect/Mon, 08 June 2015 00:00:00 Hi Ho,Hi Ho, It’s Off To Work We Go! Lisa Evanshttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/june/hi-hohi-ho-it’s-off-to-work-we-go!/That's right folks it’s back to business... Just weeks after the big vote, post-election fever is upon us. Will we see a buoyant and thriving commercial property market that the Conservatives so openly campaigned for? There is an increased confidence as SMEs look at options to invest in property and space, add to this a financial market that can, in some respects, be easier to forecast and predict and we have a recipe for a prosperous property sector in 2015. James Robertson of Knight Frank has commented that the market will pick up post-election - this being "good news for the commercial leasing and investment markets". It could also present opportunities for developers wishing to develop brownfield sites where there has been past industrial use or contamination as we may see permitted use legislation changed and relaxed. A report from Cushingham Wakefield revealed that commercial property investment grew in the first quarter of 2015 and will continue to do so, with overseas demand for retail space along with a continued demand for industrial space, but not surprisingly the strongest performer will be the office sector. However, will the passing of stringent policies post-election have an adverse effect on commercial property across the board? Take MEES for example (Minimum Energy Efficiency Standards) which slipped, somewhat stealth like, into law prior to the election and is set to be implemented by April 2018. This could lead to an all time low in the market for high-streets comprising of old buildings which will simply never achieve the standards or it will just cost too much for landlords to bring them in line with MEES. Whilst it is not necessary for a seller to comply with MEES on a sale, they will be required to comply on any ‘under letting’ by a landlord. It is this type of legislation and its implementation, if too stringent, that could cripple landlords. There are a number of factors which will essentially influence the remaining three quarters over 2015, from demand to interest rates to new legislation, but for the moment it's the renewed certainty post-election results that is contributing to a healthy market forecast for 2015; and long may it continue!http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/june/hi-hohi-ho-it’s-off-to-work-we-go!/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/june/hi-hohi-ho-it’s-off-to-work-we-go!/Wed, 03 June 2015 00:00:00 The Right to Buy Extension: What It MeansConveyancing Solicitorhttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/may/the-right-to-buy-extension-what-it-means/The first Conservative only Queen’s Speech in nearly two decades brings with it the news that the Conservative Government are to extend the Right to Buy Scheme. First introduced in the 1980’s, the scheme has allowed council house tenants to buy their properties at a discount and now the Conservative Government want to extend the scheme to 1.3 million housing association tenants as well. When the Housing Bill becomes law, as outlined in the Queens Speech, housing association tenants will acquire the same rights as council tenants to buy their properties at a discount. So, who is eligible for this scheme? Firstly, you will need to have lived at the property for at least three years and you will also need to be able to fund the purchase after the discount has been taken into account. If you are eligible for the scheme, the discounts start at 35% on a house and 50% on a flat. In cash this discount could be up to £77,900.00 across England! There has been much talk on how this extension is to be funded and differing opinions on its’ effects. The government proposes to require Local Authorities to sell off their most valuable council houses whenever they become vacant and then build replacement homes with the money raised. A Right to Build in the Bill will also help increase housing supply and diversify the housing sector by giving people the right to be allocated land with planning permission for allows them to self-build, or commission a local builder to build a home. In a recent blog for Shelter, John Bibby, discusses the government’s Right to Buy extension and what it means for the housing market. He says: "You could call it selling off two affordable homes for the price of one. And at a time when the country has a massive and recognised shortage of affordable homes, stepping up sales of the existing limited supply, to subsidise further sales, might seem like a strange response". However the new Communities Secretary Greg Clark has insisted that the plans for the right to buy extension will not lead to a fall in the overall provision of social housing in England. He says; "Every housing association property that is sold will be replaced one for one for a new property, so it is not only allowing people to meet their housing aspiration, but to increase the housing stock aswell". Whether the right to buy extension is a good decision for Britain’s housing market remains to be seen and this is a subject that is sure to continue for a long time coming.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/may/the-right-to-buy-extension-what-it-means/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/may/the-right-to-buy-extension-what-it-means/Thu, 28 May 2015 00:00:00 British Rights or Human Rights?Criminal Defence Solicitorhttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/may/british-rights-or-human-rights/The newly appointed Justice Secretary, Michael Gove, kicked off the Conservative Government last week with a pledge that within 100 days he would abolish the Human Rights Act, his intention, to replace it with a British Bill of Rights. But even supporters of the reforms, such as the barrister, Martin Howe QC, who is helping to draft the Bill, are somewhat sceptical of this accelerated timetable. It is difficult to envisage how such a complex change in the law can be properly implemented and sufficiently consulted upon, in such a short space of time, especially, as the Bill is yet to make a public appearance. Those anxious of what the Bill might contain must rely on an eight page policy document published by the Conservative Party back in October of last year, the contents of which suggest that the former Justice Secretary, Chris Grayling, did not fully appreciate the mammoth task ahead. The Conservative Government wants to "bring rights home" by curtailing the authority of the European Court of Human Rights in Strasbourg and restoring the supremacy of the Supreme Court and the sovereignty of Parliament. The Government believes that the effect of abolishing the Human Rights Act will be to prevent politically undesirable Strasbourg rulings from being enforced in the UK. But this endeavour by the Conservative Government betrays their stark misunderstanding of how the Act really works. Under the Human Rights Act the UK Courts are only required to "read and give effect to" Acts of Parliament, in a way that is compatible with Convention Rights. If this proves impossible, the UK Courts can only issue a "declaration of incompatibility" but this has no binding authority over Westminster, nor does it overrule the Act of Parliament subject to scrutiny. Furthermore, the UK Courts are only required to "take into account" judgements of the Strasbourg Court when deciding the issue of human rights on a national level. It is not the Human Rights Act that obliges the Government to respond to judgements of the Strasbourg Court but rather, Article 46 of the Convention itself, "the High Contracting Parties undertake to abide by the final judgement of the Court". To truly "bring rights home" the UK would have to pull out of the Convention, which in turn would mean being forced to leave the Council of Europe, rewrite devolution arrangements in Scotland and Wales, and breach the Good Friday Agreement that finally resolved the peace process in Northern Ireland. The Scottish Government has already confirmed that it will withhold legislative consent on the proposals and under current devolution legislation, Acts of the Scottish Parliament must comply with the Convention. If these legal hurdles weren’t enough, little is being said about the effects of the Lisbon Treaty which made the European Union's Charter of Fundamental Rights legally binding on member states when applying EU law. The Charter entrenches into EU law the rights enshrined in the Convention. Furthermore, unlike the Convention, the European Communities Act gives EU law direct effect, with the result being that the Charter can be used to disapply Acts of the UK Parliament. Add to this Article 7 of the Treaty, which gives the European Council the power to strip a member state of its EU voting rights if the member state in question breaches one of the core values of the Union, namely, a respect for human rights. It just isn’t as straightforward as repealing the Human Rights Act and there aren’t enough lawyers in Westminster to bring about this kind of constitutional reform within 100 days. With all these challenges to overcome, you might wonder why the Conservative Government is bothering to do so at all. The rights contained within the Convention are not controversial, they are basic and fundamental. The right to life, liberty, a fair trial, freedom of thought and expression, and many commentators believe that the Convention does not go far enough to protect of basic social or economic rights. Rumours of what the proposed Bill will contain have alarmed some human rights campaigners. Most worryingly the Bill seeks limit challenges to the most serious cases and to categorise people into UK citizens, EU nationals and non-EU foreigners, excluding those who "do not fulfil their responsibilities in society". This somewhat undermines the principles of equality and as the International Bar Association on Human Rights points out, "human rights can only be an effective mechanism for protection if they apply to all people and all cases". The European Convention on Human Rights is one of the greatest international achievements of the 20th century. In the wake of the Second World War, during which the people of Europe were subject to the most abhorrent violations of their freedoms, the Convention was a declaration to the World that Europe would never again allow these fundamental human rights to be systemically abused. If the UK defies the decisions of the Court and pulls out of the Convention, as the former Conservative Attorney General, Dominic Grieve QC, has warned, "respect for the law will be undermined across the entirety of Europe".http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/may/british-rights-or-human-rights/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/may/british-rights-or-human-rights/Wed, 20 May 2015 00:00:00 Domestic violence is no laughing matter Paralegalhttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/may/domestic-violence-is-no-laughing-matter/I read with interest the reports of TV chat show host Jeremy Kyle criticising his audience for bursting in to fits of laughter when a male guest on his show recalled events of domestic abuse at the hands of his female ex-partner. The dad of two told Kyle that he was embarrassed to admit that he had been assaulted by his ex partner and that the violence in their relationship came from her. He spoke of how he had been locked in their flat which resulted in him jumping from a third floor balcony to escape, suffering cuts to his arm and back. Upon hearing this the studio audience started laughing. Presenter Jeremy Kyle quite rightly stepped in at this stage and reprimanded his audience for laughing, pointing out that if the roles were reversed and a man had locked a woman in a flat they would not be laughing! They would be up in arms saying how disgraceful it was and that the man should be locked up; “just because it has happened to a bloke it is not funny” said Kyle. It is sadly the case that male victims of domestic abuse do not speak out due to embarrassment and fear of being ridiculed, not being believed or being thought of as weak. 8.5% of women and 4.5% of men were estimated to have experienced domestic abuse in 2013/2014, equivalent to an estimated 1.39 million female victims and 737,000 male victims. For every three victims of domestic abuse, two will be female and one will be male. The average male victim contacting the ManKind Initiative, a leading charity supporting male victims of abusive, is 43, is 5ft 9in tall and weighs around 13st. The average female perpetrator is 40, is 5ft 4in and weighs 10st 7lb. There is an apparent lack of support organisations for male victims of domestic violence. Shockingly there are just 12 organisations that offer refuge or safe house provision for male victims in the UK, a total of 63 spaces, of which 17 are dedicated to male victims only (the rest being for victims of either gender). This is compared to nearly 400 specialist domestic violence organisations which provide refuge accommodation for women in the UK with 4000 spaces for over 7000 women and children. If you are a male victim of domestic abuse, it’s no laughing matter, support and assistance is available. Legal intervention can be a positive step forward and organisations such as Mankind www.mankind.org.uk provide confidential support services that can be life changing.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/may/domestic-violence-is-no-laughing-matter/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/may/domestic-violence-is-no-laughing-matter/Wed, 13 May 2015 00:00:00 Wills - a worthwhile investment? Joanna Ryan http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/may/wills-a-worthwhile-investment/In my experience no one takes any joy from planning for their death. It can be a necessary evil (similar to insurance!) but can provide peace of mind that your affairs are in order. The recent passing of British comedian Rik Mayall brought the issues of effective planning to the forefront yet again as it highlighted the importance of leaving a Will and also the financial benefits future planning can have. The Probate records show that there was no Will when the Grant had been obtained to deal with the late Mr Mayall’s estate. Unfortunately this is a common situation and can occur for a number of reasons. For example, a Will was never made or an existing Will has been lost, destroyed or invalidated. If no Will is in existence, the Intestacy Rules apply. These rules operate under strict criteria as to who inherits what. In the case of Rik Mayall, as he passed away in June 2014, his wife will receive £250,000 from his estate and have a life interest in half of the remaining funds. The other half will be shared between any children he left. Interestingly the Intestacy Rules changed in October 2014 and are now more favourable to the surviving spouse who receives half of any funds over £250,000 rather than only receiving a life interest. In simple terms when this life interest arises, the surviving spouse is entitled to interest only on these funds rather than receiving the capital sum. When dealing with a large estate the Intestacy Rules can be problematic, particularly when an inheritance tax bill is due. Spouses can inherit from each other without there being an inheritance tax liability, however when any children inherit, any sum over £325,000 will be taxed at 40%. For example, if we look at an estate worth £1,000,000 under the intestacy rules, a surviving spouse would receive £625,000 without any inheritance tax due. The children however would have to pay £20,000 to HMRC as they would be due to receive £375,000 which is over the current nil rate band of £325,000. The nil rate band is the amount which can be left in an estate to a person other than a spouse without there being an inheritance tax liability. Another issue to consider is the age at which the children will inherit. When drafting a Will you can ensure funds are held on trust for children and specify the age at which they are to receive their inheritance, for example at 21 or even 25 years old. In the absence of a Will, any children would inherit at age 18. These situations can be avoided by leaving a Will combined with some careful financial planning. Realistically if you are given a simple choice as to who will benefit: HMRC or your family? I can only surmise as to who the majority would opt for! Consider a Will as you would any investment. It makes good financial sense to seek advice now rather than it potentially costing your family in the future.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/may/wills-a-worthwhile-investment/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/may/wills-a-worthwhile-investment/Fri, 08 May 2015 00:00:00 Legal Aid – Not Holding My BreathPaul Hunt http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/may/legal-aid-–-not-holding-my-breath/At the point I am writing this we are poised on the brink of polling day, an event which seems to have been hovering before us like a mirage for what seems an eternity. The coalition Government abolished legal aid for most family law cases in April 2013 but even now people are only just discovering this. In these times of austerity can we expect a new Government, whatever shape it might take, to make any changes regarding family legal aid? I am not holding my breath on this. Given that the present ‘reforms’ were the creation of both Conservatives and Liberal Democrats in coalition I have no reason to expect either party to suddenly resile from a position which they have held to firmly, against criticism from all sides, throughout Parliament. The Labour party has made noises about its dissatisfaction with the current legal aid position and has also announced that it intends to make it easier to get evidence of domestic violence as a stepping stone to legal aid and interestingly to ban GP’s from charging for reports for the purpose of providing that evidence. It should be said that one of the issues raised is the lack of legal aid means that a victim of domestic violence can be cross examined directly in Court by the alleged perpetrator, although that does miss the point (and the Labour party is not the only one to miss it) that whether or not a victim has legal aid will make no difference to them being cross examined by an unrepresented alleged perpetrator. It is the lack of legal aid for the perpetrator that can lead to direct confrontations at Court. There is an argument for there being a level playing field in situations of that kind. I suspect that whatever the outcome of the General Election sympathetic noises may be about as far as it gets and that we will continue to see people struggling unrepresented in unfamiliar territory at Court or giving up.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/may/legal-aid-–-not-holding-my-breath/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/may/legal-aid-–-not-holding-my-breath/Wed, 06 May 2015 18:00:00 What Can the General Election Hold for SMEs?Lisa Evanshttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/may/what-can-the-general-election-hold-for-smes/With just one day to go before the General Election, what do the various manifestos propose for our valuable SMEs? What are the promises and where will it all lead? From the creation of the Small Business Association to the crackdown on poor payments by big companies being proposed at least one thing is for sure there appears to be a realisation that SME’s play a vital role to the economy. However, research recently compiled by click data indicates that 41% of SME leaders are concerned about what the election will bring. Labour is proposing to increase the minimum wage to £8.00 per hour, which will undoubtedly have an effect on SME’s, particularly those employing 50 staff or more. What about better access to finance for SMEs to maintain stability? All too often we see SME’s becoming particularly nervous pre-election with many adopting a ‘stick in the mud’ attitude, acting with caution and waiting to see how it all pans out. Certainly many will refrain from entering into new finance commitments until well beyond the election outcome. Cutting red tape and a revised business rates regime are still top of the list according to many of my SME clients. Both of the above feature in the Conservative manifesto indeed it has been reported that nearly 500 SME owners in the Midlands will back the Tories, believing the party will then be given an opportunity to continue with their plans since coming into power. Business rates are a common theme in the Liberal Democrats manifesto too. Labour feature tax cuts, HMRC review, and energy cutting costs amongst others as part of their manifesto. Whatever the outcome the new Government must seize the opportunity to improve current conditions for SMEs in whatever way they can to assist and enable them to flourish and grow.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/may/what-can-the-general-election-hold-for-smes/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/may/what-can-the-general-election-hold-for-smes/Wed, 06 May 2015 00:00:00 Putting the Brakes on Speeding CyclistsTom Hanlonhttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/april-2015/putting-the-brakes-on-speeding-cyclists/Since the Olympics in 2012 and a certain ‘lycra clad kid from Kilburn’ winning the Tour de France, more and more people have taken to the roads on their bicycles to pursue their new found hobby. Now the new generation of ‘Wiggo wannabes’ are exhausting their bank accounts on the latest in lightweight and aerodynamic technology in an attempt to emulate their cycling heroes. I unashamedly fall into this category and enjoy the thrill from seeing my GPS bicycle computer exceeding 30 and sometimes 40mph. But I have often wondered, am I breaking the law if I exceed the speed limit? My instinct tells me yes. Thinking literally, in a 30mph zone if I am travelling at over 30mph, I would be exceeding the speed limit. But can I be prosecuted for Speeding? So, what does the Law say? The offence of speeding is created under S89(1) Road Traffic Regulation Act 1984 A person who drives a motor vehicle on a road at a speed exceeding a limit imposed by or under any enactment to which this section applies shall be guilty of an offence My attention is immediately drawn to use of the term ‘motor vehicle’. Is a bicycle a motor vehicle? ‘Motor vehicle’ is defined in 185(1) of the Road Traffic Act 1988 and section 136(1) of the Road Traffic Regulation Act 1984 as "a mechanically propelled vehicle, intended or adapted for use on roads." Given that a bicycle does not have a motor and is not mechanically propelled, a bicycle is not a motor vehicle. Therefore the offence does not apply and a cyclist can not be prosecuted for ‘speeding.’ That said, I think it is important to consider why speed limits exist. Speed limits are set by the Highways Agency upon the advice of Local Authorities. Taking into consideration accident statistics, traffic flow, types of vehicle which use the road and the profile of the road itself, they dictate the most appropriate speed for that road. Their responsibility is to ensure the safety of road users and pedestrians. If there are more accidents on a piece of road, the speed limit is more likely to be lowered to increase driver control, thinking time and to decrease braking distance. With this, would it not make sense to make cyclists subject to speed limits like motor vehicles? According to the Royal Society of Prevention of Accidents (ROSPA) in their 2014 Annual Report, the total number of fatalities in road accidents in 2013 was 1713. This was in fact a 2 percent decrease from 2012 and the lowest figure since national records began in 1926. The number of casualties recorded was 183,670, this is down 6 percent on the 2012 total. Whereas from 2009 to 2013, the number of pedestrians killed by cyclists was 14. The number of people seriously injured from 2009 to 2013 was 334. It is interesting to note that this report does not take into account how the accidents occurred, for example, whether this was from loss of control, excessive speed or even excess alcohol. It also does not mention what proportion of accidents took place in an urban or rural environment or the circumstances of each accident, but the statistics from this report are self explanatory. Despite cyclists being unable to be prosecuted for speeding, there are still prosecutable offences in the Road Traffic Act 1988 which apply directly to cyclists to ensure the safety of themselves, other road users and pedestrians. S28(1) creates the offence of Dangerous Cycling. s30(1) Cycling under the influence of drink or drugs (We won’t mention the Texan!) and s72 Highways Act 1835 Riding or driving on the footpath to name but a few. Interestingly there is legislation which applies to motor vehicles but can include cyclists. For instance, there exists the offence of causing Grievous Bodily Harm by Wanton and Furious Driving. Due to the wording of the offence, in s35 Offences Against the Persons Act 1861, the use of the word ‘carriages’ can include bicycles. Looking back further, an offence is created under s28 Town Police Clauses Act 1847 for ‘every person who rides or drives furiously any horse or carriage, or drives furiously any cattle’. This almost ancient piece of legislation pre-dates even the first speed limit introduced on British roads. This was from the Locomotive Act 1865 which included speed limits of all locomotives to travel at 4mph in the country and 2mph in cities, which must be escorted by a man waving a red flag in front of it. Imagine that nowadays! All road users share a responsibility for the safety of themselves, other road users and pedestrians in choosing the appropriate speed to travel on a particular road, irrespective of their mode of transport. It is quite rare, not to mention difficult, for a cyclist to be able to exceed the speed limit. And on the even rarer occasions I can exceed 30 or 40mph in my local area, they are on roads where the national speed limit applies (and a very steep negative gradient).http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/april-2015/putting-the-brakes-on-speeding-cyclists/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/april-2015/putting-the-brakes-on-speeding-cyclists/Mon, 27 April 2015 00:00:00 The General Election & The Property MarketConveyancing Solicitor http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/april-2015/the-general-election-the-property-market/7 May 2015 is a date that will be embedded upon the minds of many people who are looking to buy or sell property over the coming months, as housing pushes itself to the forefront of the main parties’ political manifestos. It is no surprise that all the parties are making pledges around housing given the current climate of stricter mortgage lending criteria, high deposits and lack of affordable homes. The uncertainty surrounding the election means a quieter period for the market as people seek clarity on which party is elected and what this may mean for them. One thing is for certain though, and that is we need more homes! The Conservatives have doubled their pledge to deliver discounted homes for first-time buyers under 40, with 200,000 new homes to be built. Meanwhile, Labour want 200,000 new homes built a year by 2020 and the Liberal Democrats pledge to provide 300,000 new homes a year by 2020. What isn’t clear though is exactly how the parties will achieve their goals. Interest rates are unlikely to stay as low as they are and it is important that once they do start to rise that this does not adversely affect the property market. The two most widely debated initiatives which could have a significant impact on the property market are ‘mansion tax’ and ‘Help to Buy’. The ‘mansion tax’ is a tax on all properties over £2 million which Labour want to introduce. The proposed tax would be imposed annually and would result in those property owners being charged from £3,000.00 to £19,000.00 for more expensive homes. The difficulty here is that the chronic shortage in the current supply of housing and increasing demand means that some houses have involuntarily been pushed into a higher price bracket. ‘Help to Buy’ has allowed first time buyers to purchase a home up to the value of £600,000.00 with as little as a 5% deposit. However, the election will have a bearing on how this continues. The scheme could be reduced or even abandoned which would have a significant impact on the wider housing market. It is understandable then that sellers and buyers may be tempted to hold back and wait until after the election before jumping into a sale or purchase of a property. The post-election market however should bring with it more certainty and with George Osborne’s recent changes to the stamp duty system housing transactions are likely to increase. For now though, we will need to wait and see what the election brings!http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/april-2015/the-general-election-the-property-market/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/april-2015/the-general-election-the-property-market/Fri, 17 April 2015 00:00:00 Care for children shouldn't have an expiration datePaul Hunthttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/april-2015/care-for-children-shouldnt-have-an-expiration-date/Due to new Legislation children who are in the care of the Local Authority in Scotland can now be supported until they reach the age of 21 whether they are living with foster parents or in a residential care home. In 2014, similar changes were introduced in England and Wales that would allow the continuation of Local Authority support (including financial support) to continue up to 21, however this only applies for foster placements and not for residential care homes. This is somewhat of a significant imbalance between the responsibilities of Local Authorities for young adults in care between Scotland and the rest of the UK. Children are placed in the care of a Local Authority and in long term foster placements as a last resort. If placement in care happens, particularly when at a very young age, children are often confused by what is happening to them. A child can be unaware of their situation, and the situation of their parent(s). It’s often the case that it has been the inability of parental care that has resorted to a child being placed in the care of our Local Authorities. They may have been extracted from a family situation that was harmful to them in one way or another, and many children in care sadly regard themselves as “second class citizens”. Those of us who are parents know only too well that the inclination to help one’s own children doesn’t have an expiration date, it doesn’t have an automatic cut off age of 18 or even 21, and I wonder whether it ever does. Children in care are already entering their adult lives in somewhat of a vacuum without the network of support that they might otherwise have had from their own parents and extended family. The nurturing process does not stop at 18. It’s hard to imagine how an 18 year old can leave a care home and immediately live independently without little, or no, advice and support. A recent radio interview focused on a variety of “care leavers” and I was struck by the very different experiences each of them had. From the determined and self reliant individuals who had risen above the disadvantages of their position and were now running successful businesses or campaigning on behalf of children who were still in care, to others who clearly felt unsupported and adrift. As a society we need to realise that if children are to be taken into the care of the Local Authority to avoid the consequences of neglect or physical harm then the responsibilities of society goes beyond a “rescue mission”. Care for these young adults as they become independent is critical.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/april-2015/care-for-children-shouldnt-have-an-expiration-date/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/april-2015/care-for-children-shouldnt-have-an-expiration-date/Mon, 13 April 2015 00:00:00 Ignore the Jargon; Good Marketing Does WorkDavid Kirwanhttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/april-2015/ignore-the-jargon-good-marketing-does-work/If, like me, you are a key decision-maker within a legal practice, you’ll be all-too-familiar with approaches from marketing and PR agencies, website designers and print houses, all keen win your business. The UK legal services industry is currently worth close to £30billion - a most attractive market. Having been in practice for more than 45 years, I have witnessed the turning of the tide from quiet conservativism within the profession to today where we firms actively compete to draw attention to services. Terms such as "SEO", and "direct marketing", which once seemed arcane, are now familiar to us all. The unprecedented financial challenges facing firms in recent years have placed the bottom line under scrutiny like never before. Many firms have questioned whether they could justify their marketing spend. In other consumer areas such as retail and manufacturing, the application of sound marketing has yielded a real surge in turnover and value. Those same techniques can also reap rewards within the legal services sector. The challenge for firms – and for our marketing support – is that legal services offer little by way of differentiation and standing out in a crowded marketplace. The arrival of big non-legal names has helped to focus minds on this key issue of branding, as the power of the client-as-consumer has taken hold. When I was a young lawyer, the accepted way to build up a firm was by establishing and protecting your personal professional reputation and developing your contacts base. Times change, and now tradition blends with innovation. New channels of acquisition are emerging, as we evolve from traditional models of business development and client relationship management to incorporate modern techniques such as video, television advertising, social media platforms and e-commerce. I think it only fitting that we now look to marketing in the same way that our clients look to us and our expertise. As an industry, we can be slow to adapt and adopt. In today’s intense, technologically-driven market, there are real benefits for those who can embrace change wisely. I took a leap of faith and placed my trust in marketing, opening new channels to the market, with the result that our practice has experienced year-on-year growth. Good, effective and thorough marketing is not just smoke and mirrors! As with any major investment, prudence is the watchword. Do your research – has the marketing agency you are considering a proven track record of achievement? Are they a good ‘fit’ for your firm in terms of style, approach and outlook? How rigorous are their methods? Do they bear scrutiny? Will they match your own standards? Can you see the partnership developing beneficially over time? Perhaps most pertinently – will their services represent value for money? Just as clients seek the best result from their legal advisors, so law firms should expect marketing initiatives to deliver the same. If they don’t, then cut your losses, manage expectations, and learn from experience. Sitting on your hands is not the answer.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/april-2015/ignore-the-jargon-good-marketing-does-work/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/april-2015/ignore-the-jargon-good-marketing-does-work/Fri, 10 April 2015 00:00:00 False Celebrity Accusations Cause Law ChangeAccredited Police Station Representativehttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/april-2015/false-celebrity-accusations-cause-law-change/It would seem not a day goes by when our newspapers, televisions and social media platforms aren’t alight with breaking stories or updates of the latest celebrity figure accused of a sexual offence. Since the launch of Operation Yewtree in 2012 the police have taken the lead in co-ordinating an extensive assessment which as a result has seen a number of celebrities being investigated for offences relating to abuse. Due to the current laws some of those accused and released on police bail, including BBC radio presenter Paul Gambaccini, Jim Davidson, Freddie Starr and Jimmy Tarbuck, had an anxious and lengthy wait to discover that the allegations would not be upheld. It was a number of months before the Crown Prosecution Service (CPS) confirmed no further action would be taken against them over alleged sex offences. This ongoing operation has sparked increased public awareness to the protocol of police bail and has triggered a proposed change in the law which is advocated by Home Secretary, Theresa May. These proposed changes will see bail limitations set to a maximum of 28 days and anonymity for suspects in such cases. Often police procedures and protocol are somewhat alien to most of us until unfortunately we either become a victim of a crime or are the accused. In the ever evolving world of 24/7 news reporting and the growing impact of social media, cases of this nature are often catapulted to the forefront of our news headlines and brought to public attention at very early stages of the investigations. As a result of such attention many of us will instantly form an opinion of the accused whilst others will gravitate to one of our fundamental human rights and the term “innocent until proven guilty”. Popular television programmes, including the Channel 4 fly on the wall documentary ’24 Hours in Police Custody’, can also influence public opinion as it highlights areas of criminal investigation and what occurs in the immediate aftermath of an arrest. Whilst there is no denying that such programmes can provide insight and knowledge for viewers often it’s the entertainment value that takes precedent. I personally find it somewhat misleading in that the programme implies that the police have just 24 hours to investigate a crime before a decision on charge can be made, brushing over the reality that many investigations can take a number of months, sometimes in excess of a year, before a case is even sent to the CPS for a decision on charge. In the interim a defendant would be released on police bail, often with stringent bail conditions. If later charged, proceedings would commence in the Magistrate’s Court and escalated to the Crown Court depending upon the severity and nature of the offence. It can take a number of months for a defendant to reach trial. Figures published in October 2014 suggested that more than 70,000 people were on police bail, 5,400 of which had been on bail for more than six months. Currently, Parliament is proposing a reform which will call for a limit of 28 days on police bail for suspects in sex cases. A select committee’s report was launched to fundamentally re-examine the way pre-charge bail is used and authorised and the report is due to be publicised soon. Interestingly the proposal also condemns the practice of informally releasing information about suspects to the media. In sexual cases, apart from in “exceptional” circumstances such as a threat to public safety, suspects should be granted the same amount of anonymity as the victim. The practical application of such reform is concerning as it will rely heavily on the efficiency of our police force and legal services framework, both of which are currently experiencing the challenging environment of government cuts and expanding performance targets. Will police resources, both financially and in terms of personnel, be adequate to operate at a sufficient level for the implementation of such reforms? If not, will we see a negative impact on the investigations of other crimes, such as burglaries and assault? Will individuals remain on police bail for longer than anticipated whilst police resource prioritises cases of sexual abuse? Will the statutory time limits cause offenders to potentially not face justice as the police are burdened with work? Whilst I agree with the concept of the proposals, lengthy police bail will always affect at least one victim, whether that be the victim of a crime or an innocent suspect who has to wait months on police bail before being released with no charge. Striking a balance between justice for the victim and the suspect is to avoid delays at all costs. However, I wonder whether the reality and practical challenges of implementation will result in such reforms falling at the first hurdle in light of the excessive cuts and increased pressures on an already struggling framework.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/april-2015/false-celebrity-accusations-cause-law-change/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/april-2015/false-celebrity-accusations-cause-law-change/Tue, 07 April 2015 14:52:00 Law Commission to Enforce Financial OrdersFamily Law Solicitorhttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/april-2015/law-commission-to-enforce-financial-orders/It would seem that the spotlight is never too far away from the world of Family Law at the moment. In its latest consultation drive the Law Commission is looking at Financial Orders and how best to enforce them. This is certainly a welcomed review and it’s time the views of the legal profession were sought to help assist in that reform. Navigating clients through the legal complexities can be a challenge but even more so when you are faced with the possibility of obtaining nothing, or just half of an order, for your client. This can leave both the client and the solicitor despondent. Enforcement of a Financial Order is, in my experience, virtually non existent. Most enforcement proceedings fall under the guise of the Civil Procedure Rules, which for most family lawyers are the province of their dispute resolution colleagues. Ask any family lawyer or litigant in person how they would enforce an order that has been breached or partially complied with and their response is likely to be "write back to the originating tribunal and bring it to the attention of the judge". This is unlike the current process for breaches of Child Arrangement Orders which can see the Applicant file a C79 form for enforcement and seek costs as well as sanctions. This approach is simple and easy to follow with detailed guidance. However, the trouble with this approach is that unfortunately Judges can be reluctant to enforce them. In most cases they like to ensure that the original order is ‘re activated’ for want of a better expression, and the enforcement application withdrawn. This can often lead to a sense of injustice for the Applicant. A holistic approach needs to be considered with a view to reform the current enforcement process. It would be much easier to file an enforcement of an existing Financial Order, pay the fee and know that the tribunal would hear evidence about it. Clearly caution is important, the process cannot be used as a mechanism to threaten or bully the Respondent whose circumstances may have changed since the original order was made. For example unemployment or inability to obtain a mortgage, all of which are subject to market forces rather than any lack of motivation on the Respondents behalf. A degree of financial intelligence would have to be adopted. What strikes me in most financial matters is how lawyers structure their case. There is little point in getting to the end of a case and advise a client to seek agreement from the lender permission to transfer the home. This should be done from the outset in order to manage everyone’s expectations. If the answer from a lender is a resounding "no" then there is little point in seeking enforcement of a Court Order that was never achievable in the first place. It will be interesting to see what the consultation brings to the forefront and what possible reforms may await this sector.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/april-2015/law-commission-to-enforce-financial-orders/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/april-2015/law-commission-to-enforce-financial-orders/Wed, 01 April 2015 00:00:00 Landlords Must Apply for Compulsory LicenceDanielle Hugheshttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/march-2015/landlords-must-apply-for-compulsory-licence/Landlords of Liverpool have just over one week left to sign up for a compulsory licence that they will need to have in place to allow them to continue to let private property. The licence process must be commenced before the upcoming deadline of 1 st April 2015. Failure to do so could lead to landlords facing fines and having to pay administration fees. Liverpool is the first major city in the UK to implement the scheme, which is estimated will apply to around 50,000 privately rented properties across the city. The new licensing scheme is aimed to eradicate slum properties and rogue landlords, improving the quality and standards of privately rented properties. The Council will consider a number of factors when determining whether to grant a licence; including checking for any convictions involving dishonesty, violence or drug-related crimes as well as reviewing any previous contraventions of housing law. Of course, it is crucially important that rogue landlords are targeted and sanctioned accordingly. But why should this be at the cost of every respectable landlord in Liverpool? As usual, it is the fair and decent majority of landlords that have to pay for the consequences of the conduct of the trouble causing minority. The licences cost £400.00 for one property; with an additional £350.00 to be paid for any additional property. For those landlords already listed in an approved scheme, such as the voluntary CLASS Accredited Landlord Scheme, the reduced fee is £200.00 per property. There is still limited time to submit an application to CLASS, which can enable landlords to qualify for the reduced licence fee: www.liverpool.gov.uk/business/private-landlords/join-up/class-accreditation-scheme . Landlords need to take action on or before 1 st April 2015. Licence applications can be made online at: www.liverpool.gov.uk/landlordlicensing .http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/march-2015/landlords-must-apply-for-compulsory-licence/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/march-2015/landlords-must-apply-for-compulsory-licence/Tue, 24 March 2015 00:00:00 Britain's Benefit Tenants' Provokes DebateDanielle Hugheshttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/march-2015/britains-benefit-tenants-provokes-debate/Channel 4’s airing of ‘Britain’s Benefit Tenants’ on 16 th March about the lack of social housing was bound to cause a stir and if provoking debate was the aim of the producers, they certainly succeeded in getting people talking. Viewers congregated on Twitter to discuss the show’s contents and seemed to criticise both the landlords and tenants equally. The Telegraph commented that the show gave "no answers" to the problems faced. So what is the answer? In short, more social housing is needed. It should not be down to the private sector to fill the gap in social housing. There is clearly a lack of council housing and the programme showed that the Council will in certain circumstances even refuse to house individuals who have been in trouble with the Police in the past. Where does this leave tenants who face eviction with nowhere to go? It isn't the responsibility of a private landlord to ensure that tenants will be re- housed by the local authority. Indeed, on many occasion I have been told that the Local Authority will not re-house tenants until they have seen a court order or bailiff notice, which means the landlords having to involve the Court. This comes at a cost to the landlord that they often never recover. Landlords often agree to cap rent at the amount of housing benefit received. As was apparent in the programme, they forego deposits and face risks of having to pay thousands in clean up costs to make the property habitable again. If tenants default on rent or damage the property- whose pocket does this come out of? Certainly not the tenants' or the Council's. Taking any tenant on board is a risk. Some landlords may prefer tenants on benefits and accept a reduced rental income (often only covering the mortgage on the property) as it means a steady payment made by a third party i.e. local Government. From my experience, I think landlords always end up coming off worse in this type of scenario. Why are they being criticised for wanting to invest in property? They are not taking advantage of benefit tenants; they are providing a service to the country by filling a gap in social housing.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/march-2015/britains-benefit-tenants-provokes-debate/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/march-2015/britains-benefit-tenants-provokes-debate/Tue, 17 March 2015 00:00:00 The Right To Be Forgotten on GoogleCriminal Solicitorhttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/march-2015/the-right-to-be-forgotten-on-google/As a Post Conviction and Human Rights lawyer I have a particular interest in the topic of rehabilitation of criminals and the right of the individual to put their past behind them. But due to the ever-evolving digital age it’s not as easy as simply doing the time and starting afresh. This has become an urgent problem of the digital age for all individuals who face the difficulty of escaping their past now that the internet records everything and forgets nothing. To address this issue, the Court of Justice of the European Union has decided that with the expansion of technology in relation to data processing, and retention that that idea needs to be expanded so that everyone should have a droit d'oubli (right to be forgotten) for incorrect or outdated information. The case of Google Spain v AEPD and Mario Costeja González was brought by a Spanish Citizen, Mario Costeja Gonzalez, and the first case of its kind to go to Court. Gonzalez complained that Google searches on his name produced links to a 1998 auction notice of his repossessed home which was tarnishing his reputation. Because of this ruling, the Court expresses the view that people have a right to privacy, and that that privacy extends to information about them. As a result, Google is now required to remove data that is considered to be ‘inadequate, irrelevant or no longer relevant, or excessive in relation to the purposes for which they were processed and in the light of the time that has elapsed.’ In summary this is a case where the right to privacy triumphed. So how does someone go about getting their past deleted from Google and other search engines future listings? If someone wants information about them removed from the web results they will have to apply to Google via a form to request they remove the links in question stating the reasons why. Google will then have to weigh up whether it is in the public interest for that information to remain. At the moment this only applies to EU-versions of Google. The form allows an individual or someone representing an individual to put in a request. Only requests that are completed accurately, which demonstrate that the listing is ‘irrelevant, outdated, or otherwise inappropriate’ will be removed. Google has already received thousands of requests, which will be considered on a case-by-case basis and most of these are unlikely to be approved, as they won’t have met the formalised criteria that the form requires. If rejected, individuals can appeal the decision to the Information Commissioner who will look at whether the information contained in the link breaches the data protection principles and consider whether the public interest outweighs any negative effect it is having on the individual making the application. At Kirwans we have an experienced team who can advise on making a successful application to Google for the “right to be forgotten”. Where applications have previously been refused we can assist you in making an application to the Information Commissioner to appeal the decision.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/march-2015/the-right-to-be-forgotten-on-google/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/march-2015/the-right-to-be-forgotten-on-google/Mon, 16 March 2015 09:02:00 Robin Williams' Family Battle Over Wording of WillClaire Curriehttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/march-2015/robin-williams-family-battle-over-wording-of-will/As a Private Client solicitor dealing regularly with family disputes and fallouts, it’s not unusual for me to speak out about the importance of having the relevant and up to date planning in place should the worst happen. But in the case of Hollywood actor Robin Williams, he had done all the right things and had the appropriate legal paperwork in place in the event of his death. However, as can often be the case, even with his wishes outlined seemingly in black and white, a family dispute has begun over how his assets are divided. Many personal items were willed to his three children from his previous two marriages but his widow from his third marriage, Susan Williams, is disputing their entitlement to them. The paragraph in the will which is being debated says that Robin Williams' children are given "clothing, jewellery, personal photos taken prior to his marriage, memorabilia and awards in the entertainment industry and the tangible personal property located in Napa." The argument that is ensuing is due to the final three words “located in Napa”. Williams is arguing that these three words relate to the whole sentence so that the children are only entitled to clothing, jewellery, personal photos etc that are contained in the Napa property, therefore leaving all personal items in the Tiburon house to her. However, the children are reading the sentence differently and state that the last three words only refer to the tangible personal property and they are entitled to all clothing, jewellery etc wherever it is held. It is now up to the court to decide how the will should be read. Robin Williams did better than most when completing his will as he didn’t just think about the bigger things such as property or bank accounts but considered his personal possessions. This may be because he was aware that certain things such as his Oscar statuettes or the suit he wore to the Oscars would be extremely valuable. But whatever the monetary value of personal possessions the sentimental value will often be far more. It is easy to split cash between X amount of people but how can you split that vase that has been in the family for a number of years? It is therefore extremely important within your will to define any personal items that you wish to go to a specific person and define them clearly. “My blue vase” is fine if you only have one but if you have a whole collection, which exact blue vase needs to be described as fully as possible. We can see from Robin Williams’ will that it is so easy for a sentence to be construed differently depending on how people want it to fit their situation. In an ideal world you could write everything to be divided equally but in the current litigious climate with 2 nd marriages, step children and split families this is not always going to be the case and the greater the definition the less likely is the potential for conflict.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/march-2015/robin-williams-family-battle-over-wording-of-will/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/march-2015/robin-williams-family-battle-over-wording-of-will/Fri, 13 March 2015 11:12:00 Proposals To Change Enforcement of Financial OrdersFamily Law Solicitorhttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/march-2015/proposals-to-change-enforcement-of-financial-orders/The Law Commission has today opened a consultation on how best to enforce financial orders and have sought the views of the profession to help assist in the reform. This is a welcomed review for a number of reasons. Frustratingly when a solicitor works hard only to eventually obtain nothing or not as much as we would have liked for our clients leaves both parties despondent, not to mention professionally embarrassed. Enforcement of financial orders are in my experience virtually non-existent certainly in the area of family law. Most enforcement proceedings fall under the guise of the Civil Procedure rules which for most family lawyers are the province of their Dispute Resolution colleagues. Ask any family lawyer or litigant in person how they would go about enforcing an order that had been breached or partially complied with and the only answer would be to write back to the originating tribunal and bring it to the attention of the Judge. This is unlike the current processes of breaches of Child Arrangement orders which allows a client to apply for enforcement and seek costs as well as sanctions. This approach is simple and easy to follow with notes for guidance on completion of such documents. The trouble with this approach is that Judges are reluctant to enforce them and they like to ensure that the original order is reactivated for want of a better expression and the enforcement applications withdrawn. This can often lead to a sense of injustice for the applicant. A holistic approach to enforcement needs to be considered with a view to reform the current process for enforcement of financial orders and the consultation process is welcomed in my opinion. How much simpler it would be to file an 'enforcement of existing financial order form', pay the fee and know that the tribunal would hear evidence about it? Clearly caution is important; the process cannot be used as mechanism to threaten or bully the Respondent whose circumstances may have changed since the original order was made. For example, unemployment or inability to obtain a mortgage, all of which is subject to market forces rather than any lack of motivation on the respondent’s behalf. A degree of financial intelligence would have to be adopted. What strikes me in most financial cases is how lawyers go about the structure of the case. There is little point in getting to the end of the case then advising a client to seek agreement from the Lender permission to transfer the home. This should be done at the outset in order to manage everyone’s expectations. If the answer from the Lender is a resounding ‘no’ then there is little point in seeking enforcement of a court order that was never achievable in the first place.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/march-2015/proposals-to-change-enforcement-of-financial-orders/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/march-2015/proposals-to-change-enforcement-of-financial-orders/Thu, 12 March 2015 00:00:00 Truth Behind The Stats Of Sex Offenders WhereaboutsSolicitor Advocatehttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/march-2015/truth-behind-the-stats-of-sex-offenders-whereabouts/Thirty nine police forces have released figures that 394 sex offenders whereabouts are unknown. This figure may sound alarming but what is the true context of the statistics? When an individual is convicted of sex offences they normally automatically have to sign on the sex offender's register. This means they have to tell the police where they live and sleep. The reason for the requirement is to monitor sex offenders and stop them reoffending. An example is if an offender moved into a house with vulnerable people (such as children or vulneable adults). The police would be able to make enquiries at this address, find this information out and make appropriate safeguards. This may be something as simple as telling the occupant of the address of the qualifying conviction. A natural reaction to these figures is shock and concern. After all these offenders may well be dangerous individuals. These feelings need to be balanced against the the fact that the percentage of offenders whose whereabouts are unknown must is very small. According to Ministry of Justice figures there are 43,644 persons on the register equating to roughly less than 1% being unaccounated for. My own professional experience is that many breaches are technical. They involve individuals that are disorganised and lead chaotic lives. Others I suspect just want to lead a normal life without the embarrassment of restrictions placed on them through notification. My final thought is that the long arm of the law is never far away from tapping offenders on the shoulder. These individuals should do the decent thing and hand themselves in. This factor could help keep any sentence to minimum.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/march-2015/truth-behind-the-stats-of-sex-offenders-whereabouts/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/march-2015/truth-behind-the-stats-of-sex-offenders-whereabouts/Wed, 11 March 2015 11:04:00 Recent Case shows need for Clean Break OrderPaul Hunthttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/march-2015/recent-case-shows-need-for-clean-break-order/Divorce stories are ten a penny when it comes to ex-spouses at loggerheads but the latest case in the Supreme Court has seen a woman seeking financial support from her now-millionaire ex-husband – 20 years after their divorce was finalised. Kathleen Wyatt, 55, has won her case in the Supreme Court and will be allowed to pursue a claim for financial provision from ex Dale Vince despite their divorce taking place in 1992. The couple lived a traveller lifestyle before separating in the mid 1980’s when neither of them had two pennies to rub together at that point. The ex-husband however went from strength the strength and established a hugely successful business around green energy and wind turbines. It can be argued that bringing such an application over 20 years after the divorce was finalised, when there has been no contribution at all to the wealth created post divorce, is taking a liberty. It is a very difficult to avoid a gut reaction to the case on those lines. In this instance the gut reaction would be very wrong. The Court has been persuaded to permit the ex-wife to pursue her application and the case will be passed back down from the Supreme Court to the High Court for full hearing. However, the Court has cautioned her that while the application can be run, she should in the circumstances be looking for a ‘comparatively modest award’. No doubt the ex-husband thinks that anything at all after 20 years is too much. However, it remains the case that there is no time limit on making an application for financial remedies. Unlike other civil claims, the only restriction on making financial applications in the future when the divorce is finalised is if the applicant has remarried. The only way of making sure this door is closed and remains very firmly nailed shut is to obtain a Court order at the time of the divorce by way of a ‘clean break’. This can be done by agreement with the document submitted to the Court for approval. I continue to meet many clients who have separated years before (although perhaps not as much as 20 years) and either have done nothing at all about financial issues or have divided assets between them informally but without obtaining a Court order. This is an extreme case but it does demonstrate the principle that it is potentially fatal just to walk away from a divorce without having tied up the loose ends. Had the parties in this case got a clean break order in 1992 then that would have been the end of the matter but from the husbands point of view will prove to be an expensive omission.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/march-2015/recent-case-shows-need-for-clean-break-order/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/march-2015/recent-case-shows-need-for-clean-break-order/Wed, 11 March 2015 00:00:00 Civil Court Fees Increase Dispute Resolution Solicitorhttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/march-2015/civil-court-fees-increase/Today heralds a new era for Civil Litigation as the Ministry of Justice introduces significantly increased Court fees for those seeking justice and compensation through the Civil Courts. Whilst fees for Small Claims, claims with a value of £10,000 or less, remain unchanged, a new fee scale has been introduced for claims in the Fast and Multi track of the Court system. The Court issue fee for claims over £10,000.00 will now be calculated at 5% of the total value of the claim, capped at £10,000.00 for claims of £200,000.00 and over. The Ministry of Justice claims that the increase in fees will potentially bring in as much as £120 million a year but at what cost? Such increases could have a significantly negative impact on the access to justice for many individuals and small to medium size businesses, who will simply not be able to afford to bring their claim. No one enters into litigation lightly but for some who have exhausted every other option, going through the Courts is the last resort. Commencing court proceedings always requires expert planning and advice and Court fees naturally form part of the costs of any claim. These proposed increases will bring additional financial commitment for those who wish to issue proceedings. In a time where cash flow is key, people and businesses are already questioning whether they can afford to litigate through the Courts, this increase in fees will only add to this uncertainty, with no doubt savvy debtors relying on the fact that people that they owe money too just cannot afford to pursue them. This is a subject matter that has resulted with many in the legal profession questioning such rise in Court fees and the impact this will have on the very foundations to which our justice system was created. We have been proactively seeking MP involvement and support in our objections to the increase. The Court’s have not been silent on this issue either, rather than the predicted welcoming of more income for the Courts, a significant number of Judges have raised their concerns that the increase in fees will detract from people using the Court and may result in people shopping for justice in other jurisdictions. The UK is known for its pioneering legal system that has been the benchmark for other legal systems to base itself on. With the increase in these fees it now seems that Lady Justice may soon only be available to those with pockets deep enough to afford it.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/march-2015/civil-court-fees-increase/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/march-2015/civil-court-fees-increase/Mon, 09 March 2015 15:30:00 We “Wilfully Neglect” Our Social WorkersCriminal Solicitorhttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/march-2015/we-“wilfully-neglect”-our-social-workers/Recent proposals by the Conservative party to criminalise social workers who “wilfully neglect” a child who is suspected of being a victim of abuse provokes strong debate how the concept would be applied and the impact it would have on already overstretched care workers. The aim of the proposal is to “send out message” that child abuse can no longer be regarded as a secondary issue by public sector workers. As a result social workers could face up to five years in prison if they “turn a blind eye to abuse”. I would agree, we do need a radical overhaul of our child protection system, but in the wake of the child abuse scandals in Rotherham and Oxford, the way to achieve this is with more investment, better pay and better working conditions. Our crisis in social care has come about, not because social workers have stopped caring about whether children are being abused, but rather, because of governmental mismanagement and a cut in public spending. Furthermore, critics say the new proposals “threaten openness”, in that social workers will be less open when things go wrong, and could lead to scapegoating individuals who will take the blame for organisational failings. “Wilful neglect” is not a new concept, previously deployed in the Criminal Justice and Courts Act 2015, which applies to care workers and care provider organisations in similar circumstances, and also in the Mental Capacity Act 2005 and the Children and Young Persons Act 1933. The Courts have interpreted “wilful” to mean “advertently recklessness”. For the non-legally qualified social workers amongst us, this means “being aware that some harm might be caused if you do not act but unreasonably running that risk anyway or not caring whether such a failure to act would lead to harm being caused”. This isn’t your man on the street’s understanding of the word, usually reserved to describe a deliberate or intentional act. Add to this confusion “neglect”, a word usually used in the civil courts when describing an omission, and it is unsurprising that the contradictory concept of “wilful neglect” has caused difficulties for juries and magistrates. When the Mental Capacity Act introduced “wilful neglect”, the Code of Practice accompanying the legislation described it to mean “a serious departure from the required standards of treatment and usually requires that a person has deliberately failed to carry out an act that they were aware they were under a duty to perform”. With this guidance in mind it is hard to envisage how the concept of “wilful neglect” can or will be applied to social workers who everyday face the impossible task of balancing the State against personal freedoms and the rights and duties of parents. And what will be the results of a prosecution other than an expensive Crown Court jury trial? If convicted, we remove an otherwise caring person from the caring profession, we imprison an otherwise positively contributing member of society leaving less money and less people to correct the failings in the system. If acquitted, we still have the expense of a trial and a reputation in tatters. If it sounds draconian to send a social worker to prison because they make a mistake, that’s because it is. While I do not seek to minimise the importance of ensuring that we have quality professionals in front line public sector jobs, social workers are already regularly critised by the National Press. Add to this low pay, stressful working conditions and now the threat of prosecution, all the Government will achieve is discouraging caring people from entering a caring profession.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/march-2015/we-“wilfully-neglect”-our-social-workers/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/march-2015/we-“wilfully-neglect”-our-social-workers/Wed, 04 March 2015 14:24:00 Judge Ruling Marked as a Landmark Case in Divorce LawPaul Hunthttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/february-2015/judge-ruling-marked-as-a-landmark-case-in-divorce-law/A recent Family court ruling has been deemed as a landmark case as the Judge ruled that a woman has no right to be “supported for life” by her former husband. This ruling will no doubt have an effect on how ‘big-money’ divorce cases will be resolved in the future, with the Lord Justice Pitchford told mother-of-two Tracey Wright, 51, that divorcees with children aged seven or over should seek employment. Former riding instructor and legal secretary Mrs Wright lives with the couple’s youngest daughter and chose not to work after her divorce to vet Ian Wright in 2008 after 11 years of marriage. She walked away with a £450,000 mortgage-free home in Cambridge. Her former husband was ordered to pay her and their children £75,000 a year in maintenance and school fees. £33,200 of this was Mrs Wright’s ‘personal upkeep’. However in 2014, Mr Wright went to the High Court in attempt to reduce these bills, saying it was unfair that he is expected to support his wife even after retirement and especially since his ex-wife has made “no effort whatsoever to seek work”. An order had been made initially for the £33,200 per year maintenance to be phased out and reduced in the years leading up to the ex-husbands retirement. Mrs Wright appealed that decision and was unsuccessful. The wife was subsequently told by the Judge that it was imperative that she find a job just as vast numbers of others women with children have to do. The case has attracted a lot of attention but in some ways it shouldn’t because the Court already has a duty to consider whether it is possible to achieve a clean break on financial issues between a divorcing couple and at what point their responsibility towards each other should come to an end. The Court in this case has underlined a very clear view that a divorced wife (or of course a husband) should be expected to contribute financially and cannot expect the support indefinitely many years after the marriage. The message seems to be very clear that even when we are in millionaire territory, a wife who clearly has some earning capacity will be expected to use that to the maximum and cannot expect to be in receipt of financial support indefinitely.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/february-2015/judge-ruling-marked-as-a-landmark-case-in-divorce-law/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/february-2015/judge-ruling-marked-as-a-landmark-case-in-divorce-law/Thu, 26 February 2015 15:31:00 Legal Aid Cuts Make Charities More ImportantAccredited Police Station Representativehttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/february-2015/legal-aid-cuts-make-charities-more-important/As a law firm Kirwans place a great importance on our local communities and the people within in and as part of that we are heavily involved with support groups in and around the Wirral. One such group is Tomorrows Women Wirral (TWW) which offers a wide variety of services to women throughout the area. From health advice to support with job interviews, the charity is an intregral part of the local community to women from a variety of walks of life and backgrounds. Kirwans contributes by attending weekly and offering legal advice on numerous areas of law such as Family, Criminal Law, Motoring amongst others. The work of TWW has been increasingly vital since April 2013 when Legal Aid cutbacks largely affected the Criminal Justice System and Family Law Courts. Despite being in place for over 18 months now, people still remain largely unaware that Legal Aid funding may not be available to them until they find themselves in a difficult situation. Cuts are affecting separating families trying to share custody of their children or separate assets, divorces, driving offences, even some more serious criminal cases. Some of which may seem trivial to others but what if a conviction for a driving offence meant that you lost your job? What if not being able to afford a solicitor to speak on your behalf in Court, meant that you were too afraid to put forward your case? Or even preventing you from getting visitation to your children? Unfortunately due to these cuts it is all too often that we have to turn away clients because funding is no longer available. As a Trainee Solicitor this causes me great concern on the effects this has on our local community and the impact it will have in the long term for the families and I feel an obligation to society to contribute via our involvement in many local organisations offering free drop in legal clinics to offer support for those no longer eligible for Legal Aid. Personally I am delighted to be involved with TWW to help women wanting to make positive changes in their lives. With yet more cuts to come it makes me worry what the future holds for our local communities and the legal system but as long as there are charities such as TWW we can at least contribute to help people who need it most in our local area. We attend Tomorrow’s Women Wirral every Thursday from 11am – 12pm to offer free initial legal advice.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/february-2015/legal-aid-cuts-make-charities-more-important/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/february-2015/legal-aid-cuts-make-charities-more-important/Wed, 25 February 2015 11:57:00 Family Drug and Alcohol Courts Set To ExpandPaul Hunthttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/february-2015/family-drug-and-alcohol-courts-set-to-expand/As Family lawyers we see every type of family setup and scenario passing through our doors and the Courts. This can often include cases involving parents with drug and alcohol abuse problems and the battle to obtain custody if there is proven abuse issues can be a long road to resolution. For several years there has been a designated Family Drug &amp; Alcohol Court (FDAC) in London and more recently in two other locations and it has been announced that similar Courts will now open in other parts of the UK. Statistics by Brunel University have revealed the success of the existing courts with 35% of mothers managing to kick their addictions so their children could be returned to them. This is substantial compared to just 19% going down the usual route of ordinary courts. In these cases the parent will have to demonstrate that they have dealt with these problems within a fairly short timescale in order to avoid children being permanently removed from their care. The FDAC is different in that it has its own team of experts and doctors on hand and provides very rigorous and closely scrutinised process with parents coming back before the Court on a fortnightly basis for progress updates with regular drug testing. It also deal specifically with cases where the Court is being asked to consider if children should remain living with one or both of their parents when there are drug and alcohol issues. They do however have to accept that children would be placed with other family members or in foster care while they concentrate on their own problems and therapy. However, the numbers involved are relatively small and inevitably there will be a higher proportion of people involved in that Court who are motivated to change. Clearly it is no use to anyone who is in denial who is not prepared to cooperate with treatment. Clearly that type of specialist Court has its place in the scheme of things and it is hoped that this facility will become more generally available.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/february-2015/family-drug-and-alcohol-courts-set-to-expand/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/february-2015/family-drug-and-alcohol-courts-set-to-expand/Mon, 23 February 2015 13:08:00 The Global Law SummitJeremy Hawthornhttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/february-2015/the-global-law-summit/This spring we are celebrating 800 years since King John, founder of the city of Liverpool, signed the Magna Carta into law and paved the way for democracy. That momentous meeting in Runnymede, an insignificant floodplain just off the M25, is now marked by a parade for the great and good in Central London. A Global Law Summit, no less. Read a translation of Magna Carta and it is a mixture of provisions mostly about property and administration. Some are politically dubious (“No one shall be arrested or imprisoned on the appeal of a woman for the death of any person except her husband”) and others would have present-day lawyers frothing (“If a man dies owing money to Jews, his wife may have her dower and pay nothing towards the debt from it”). But yes, the King gave up some powers and that was no doubt a step in the right direction. A more qualified view can be found in the pages of a favourite of mine '1066 And All That'. Authors Sellars and Yeatman provide this summary of Magna Carta: 1. That no one was to be put to death, save for some reason (except the common people) 2. That everyone should be free (except the common people) 3. That everything should be of the same weight and measure throughout the realm (except the common people) 4. That the courts should be stationary, instead of following a very tiresome medieval official known as the King’s Person all over the country. 5. That ‘no person should be fined to his utter ruin’ (except the King’s Person). 6. That the Barons should not be tried except by a special jury of other Barons who would understand. Magna Charter was therefore the chief cause of Democracy in England and thus a good thing for everyone (except the common people). So maybe the democratic benefits were not for everyone. That would be no surprise, would it? Politicians are ever coming out with fine-sounding phrases which look good abroad but don’t mean a lot at home. It is all too easy to announce a positive benefit and then find reasons why people can’t have it. It’s quite common in today’s legal field... • We are equal before the law – Legal Aid is unavailable for many types of case. When it is available, it is difficult to get and practitioners are harder to find as pay rates have been as good as frozen for 20 years. • Our judges clamp down on the politicians – the scope of judicial review has just been slashed by the politicians themselves. • Prison is only a last resort – courts find it quite easy to jail people, so that Britain has the largest prison population in Western Europe. • We don’t lock up children – we do and a previous opinion piece on safeguarding children in custody is just one example of how the proof of the pudding is in the eating and not in the recipe. What then of the Global Law Summit? Well, tickets are £1,750 a go. Sounds like a great time for everyone ‘except the common people’. I don’t see John or Joan Citizen queuing up for this one.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/february-2015/the-global-law-summit/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/february-2015/the-global-law-summit/Fri, 20 February 2015 00:00:00 Domestic Violence Scheme Pilots In North WestParalegalhttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/february-2015/domestic-violence-scheme-pilots-in-north-west/Domestic violence remains one of the most sensitive areas of Family and Criminal law and the fight against it is a pressure that the Crown Prosecution Service (CPS) continues to strive to improve to obtain justice for victims. For the past 10 months the CPS in Merseyside/Cheshire has been running a pilot scheme designed to protect victims giving evidence in domestic violence cases. During this time, there have been 35 convictions secured in the area, which already has the best conviction rate for domestic violence cases. They have a specialist domestic violence team with expertise in dealing with more complex cases of domestic abuse. The scheme involves vulnerable victims and witnesses being cross examined as soon as possible following the alleged offence with the interview being played as evidence later when needed. The aim of this is to not only assist in lessening the distress of the victim but it is also hoped that their recollection of details of the incident will still be fresh in their mind. Recollection of details of an incident can sometimes be forgotten or even blocked from the victim’s mind and may not be recalled when it came to a trial several months later. The aim is that this will enable the CPS to build a strong case from the start in the hope that the defendant will plead guilty and the victim will not have to face a trial. This removes the possibility of he/she appearing in Court to be cross examined in a formal setting and in the presence of the perpetrator if a trial is required. The scheme allows better focus to be placed on the needs of the victims as they try to cope and recover from the traumatic events and to gain the best possible evidence for presenting at Court. This is obviously a positive approach for genuine victims of domestic violence, however there are negative aspects within the scheme. There is potential for an alleged victim to rehearse, choreograph or be even be prompted in what they are going to say in interview. The CPS will need to ensure all cases are investigated appropriately, handled sensitively and reach a result based on the unique details of each case. Given the success of the scheme so far in the North West, we will hopefully be seeing even more justice for victims in the future should it be rolled out across the whole of the UK.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/february-2015/domestic-violence-scheme-pilots-in-north-west/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/february-2015/domestic-violence-scheme-pilots-in-north-west/Wed, 18 February 2015 14:48:00 Safeguarding Children In Police CustodySolicitor Advocatehttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/february-2015/safeguarding-children-in-police-custody/Throughout 2014, the Government came under immense scrutiny and criticism in the way it differentiated between the treatment of children aged 16 compared to those aged 17 years old in the rights and treatment received whilst in custody at police stations. In November 2014, statistics showed there were 1,055 children in custody. Whilst there has been a decline in numbers, 1 in 4 in custody is ‘on remand’ i.e. not convicted and 96% are aged 15-17. 94% are boys. Following a High Court ruling in the case of Hughes Cousins-Chang and a campaign led by Just for Kids Law and supported by parents of two 17 year old children who had tragically committed suicide following facing legal action, Teresa May promised to "accept the court’s judgment and consider next steps to implement changes". This has led to the Home Secretary and Nicky Morgan MP to write to Local Authorities to remind them of their absolute duty under Section 38 of Police and Criminal Evidence Act 1984 and Section 21 of the Children's Act 1989 to transfer children to local authority accommodation pending an appearance at court, unless narrow exceptions apply. Each local authority was reminded that it "must receive and provide accommodation for a child when requested to receive under Section 38." In my experience of regularly representing children appearing in court from police custody, the reality is far below expectations of the Home Secretary. Recently I represented a youth with no previous convictions, charged with a low level domestic assault. The youth was suitable for bail, as conditions were not met to remand him in custody. The Custody Sgt agreed this was the case, but wouldn't bail him to the family home and instead referred his case to Social Services. The response from Social Services was that there was no accommodation available. Despite representations being made, the child was remanded in police custody and remained in a police cell overnight and to court the following day, at which point he was bailed "to live as directed by Social Services", placing the burden firmly at their door to find accommodation, which they did. This is not an isolated case; I have come across this problem often enough to be of the opinion that there is a combination of factors at play; lack of funding for appropriate accommodation, and crucially a lack of understanding of the absolute duty statute imposes. There does not appear to be any sense of urgency and the blanket response is "no accommodation is available". There certainly doesn't appear to be communication across areas that Teresa May would like to see. Unfortunately, for too long this has been the norm. The significant numbers of those in custody will undoubtedly place a financial burden on already tight budgets. I note with interest the absolute obligations are reiterated, but without any leeway or possibility for additional funding for accommodation or crucial training. This leads me to question whether Teresa May is merely paying lip service to the High Court and just in time for a general election?http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/february-2015/safeguarding-children-in-police-custody/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/february-2015/safeguarding-children-in-police-custody/Wed, 11 February 2015 11:15:00 Homebuyers Will Pay More for Faster ServicesLisa Evanshttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/february-2015/homebuyers-will-pay-more-for-faster-services/When buying your first home or indeed any home you will inevitably need a reliable solicitor, it is after all a daunting prospect and for most people the house is the biggest commitment and most expensive asset. You will want your Solicitor to guide you through the process step by step, and to provide a friendly cost effective service. However, it is not just these factors that are important; it would seem that one of the most important factors to homebuyers is speed. So the service needs to be good and the Solicitor must perform somewhat faster than at a glacial pace. According to a recent survey of 4,5000 people by the Property Academy in partnership with the TM Group, one in four are willing to pay more for a faster service and only 13% of home owners choose the cheapest Conveyancer/Solicitor. Many buyers indicated they would pay more for a fast track service. It appears that 25% of people surveyed require a swifter conveyancing service and this is echoed by the comments of Elliot Vigor, the Chief Executive of Veyo the Conveyancing Portal, which goes live in March who has commented that the three months average for a Conveyancing transaction is not going to cut it. Conveyancing is more complex than ever before and clients now want the best service and fast which can cost more. One of the reasons why conveyancing is more complex than ever before is that Lenders have become much more risk adverse post the crash in 2007/08. Because of this, the processes undertaken by Conveyancers/Solicitors has become much more lengthy which often presents a challenge as the client wants to be in the new property as quickly as possible. Trying to explain to a client (who in their mind has already got their soft furnishings for their new home all picked out) that the bank need to review a certain aspect of the transaction is no mean feat. Many a client has said to me “it doesn’t bother me and the bank don’t live there - why do they care?” However, Lenders are asking Solicitors and Conveyancers to make enquiries which they wouldn’t haven’t necessarily raised before the crash and the client would have simply taken a view on the same but this is now a thing of the past. The survey also found that 42% of Conveyancing clients would be prepared to recommend their Conveyancer/Solicitor compared to 50% that would recommend their estate agent if asked. Therefore this bodes well to make an impression with a fast effective service in order that client retention is optimised.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/february-2015/homebuyers-will-pay-more-for-faster-services/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/february-2015/homebuyers-will-pay-more-for-faster-services/Fri, 06 February 2015 14:32:00 Soap Opera Highlights Parent's ResponsibilityPaul Hunthttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/february-2015/soap-opera-highlights-parents-responsibility/Regular viewers of Coronation Street will know that hairdresser David Platt has not exactly always been the most innocent of characters having been involved in his fair share of bust-ups and brawls. But more recently it seems he is ditching his bad boy ways and putting estranged wife Kylie’s son Max as his priority and seeking the advice of a Family Law solicitor to request Max resides with him and not biological dad Callum. David’s main difficulty is that although he has cared for him for a number of years he is not the biological father. Because of this, David will not have the legal status of ‘parental responsibility’, which a mother automatically has and the biological father would have, if he appears on the child’s birth certificate. Legally speaking, David is therefore facing a struggle. He can apply for what is known as a ‘Child Arrangement Order’ which incorporates residence and contact issues. However because he is not a parent, first he has to apply to the Court for ‘leave’ which is gains him permission to get the application off the ground. Anyone can apply for ‘leave’ but this application will be refused if the Court is not satisfied it would be appropriate for the application to happen. This is a way of filtering out applications by people who do not have a close connection with the child. If David applies for ‘leave’ the Court has to consider the nature of his application, his connection with the child and any risk of disrupting the child’s life. If the application is successful then he will apply for ‘residence’. The Court will look at each potential carer to establish what is in the best interests of the child. If David succeeds and gets a Child Arrangements Order which states that the child should live with him, then he will have the status of ‘parental responsibility’. This will then enable him to be in a position to speak directly to schools, hospitals, doctors etc as necessary. Typically you would expect that the biological parent is going to have priority when it comes to making decisions about a child’s future welfare. However, In Callum’s case there would be issues about the minimal role that he has actually played in his son’s life so far. Many a child forms a stronger bond with a step-father than with a natural one. It will be interesting to see how the soap continues to deal with the issue but storylines like this are a positive step in educating people about the necessary legal steps if they find themselves in the same position.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/february-2015/soap-opera-highlights-parents-responsibility/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/february-2015/soap-opera-highlights-parents-responsibility/Fri, 06 February 2015 14:00:00 Winter Weather Prompts Warnings On SafetyJames Barkerhttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/february-2015/winter-weather-prompts-warnings-on-safety/If the news is to be believed then the wintery weather we’re witnessing at the moment is showing no signs of disappearing! And as a result, the cold snap makes roads and car parks and pathways extremely icy and can be precarious for people when walking out and about. When these types of areas become icy the users become susceptible to the risk of injury especially if steps are not taking such as icing and gritting. During this time of year the number of accidents on highways and car parks increases dramatically. Under legislation both Local Authorities and owners of premises such as car parks, pathways have a duty to make sure that visitors are safe. This obligation can extend to ensuring that car parks, pathways and roads are gritted. Failure to take reasonable care can mean that they are potentially liable for any injuries that are sustained on their premises. If you have been injured whilst out in bad weather conditions then you are potentially entitled to compensation and it is worthwhile seeking the advice of a Solicitor, preferably one which will ensure that you receive 100% compensation.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/february-2015/winter-weather-prompts-warnings-on-safety/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/february-2015/winter-weather-prompts-warnings-on-safety/Tue, 03 February 2015 12:30:00 20% Property Deposits Mean Decades of SavingConveyancing Assistant Solicitorhttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/february-2015/20-property-deposits-mean-decades-of-saving/As children we are taught that part of growing up is to one day own a home; somewhere to live out your hopes and dreams and maybe raise a family. We are bombarded every day on TV with happy, smiling people creating memories in a home they have worked hard to achieve but is this idyll becoming more and more unobtainable for first time buyers today? A recent report by housing charity, Shelter showed that it will take more than a decade to save the 20% deposit typically required from aspiring homeowners. This figure is due to rising house prices, stagnant wages, high costs of living and tougher lending rules. According to Rightmove, the average price of a property in Wirral is £160,749.00. To buy a property at this price with a 20% deposit would mean saving £32,149.80! Things are even tougher down south with the average price of a property in London at an eye watering £523,953! It is no wonder then that we have seen a sharp rise in the amount of first time buyers receiving some form of financial help from parents and grandparents. In fact, last year in the UK £8.3bn worth of home deposits were given to adult children by their parents. For those not fortunate enough to receive financial help from family, the prospect of ever stepping onto the property ladder may seem daunting. However, it is not all doom and gloom... The mortgage market has improved considerably over the last 12 months and it is now possible to find a mortgage with a low interest rate even without a sizeable deposit. Also, the Government's Help to Buy Scheme is another affordable way to achieve your own home. This scheme is available to borrowers with a deposit of at least 5% who want to buy a property up to the value of £600,000.00. In addition, the recent changes to stamp duty rates could mean extra funds to put towards the ever important deposit. Whichever way we choose to look at it, the road to home ownership is destined to be lengthy. Encouragingly though, data released by Halifax reports that 2014 saw the highest number of first time buyers since 2007. Perhaps the home ownership fantasy could become reality after all?http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/february-2015/20-property-deposits-mean-decades-of-saving/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/february-2015/20-property-deposits-mean-decades-of-saving/Mon, 02 February 2015 00:00:00 Charities Challenge Legal Aid RegulationsPaul Hunthttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/january-2015/charities-challenge-legal-aid-regulations/The High Court has recently dismissed an application made by domestic violence charities to change the evidence used for domestic violence victims' applications for Legal Aid. Since changes in April 2013, Legal Aid is still available for Non Molestation and Occupation Orders and Care Proceedings brought by the Local Authority. However, for other Private Law matters involving arrangements for children and division of financial assets in divorce, there is no Legal Aid available unless the person seeking Legal Aid can prove that they are victim of domestic violence/abuse. To prove this adequately, the evidence needs to fulfil a certain criteria which is what domestic violence charities are challenging It is this strict criteria of evidence which is creating worrying barriers preventing victims of domestic abuse being able to apply for Legal Aid. Such proof must be one of the following: a) The perpetrator of the domestic abuse incident has an unspent conviction for domestic violence offence. b) The perpetrator of the domestic abuse incident has received a police caution for a domestic violence within the last 24 months. c) There is evidence of criminal proceedings against the perpetrator for a domestic violence offence, which are not yet concluded. d) There is a protective injunction against the perpetrator of the domestic abuse incident which is either still in force or was granted within the last 24 months. e) A letter from the Chairman of the multi-agency risk assessment proving that the matter is a high risk victim of domestic violence or that within the last 24 months there has been a plan put in place to protect the victim from the perpetrator f) A report from a health professional confirming that the Applicant has been examined within the last 2 years and that the Applicant had injuries on a condition consistent with a victim of domestic abuse and that there is no reason to believe that the injuries on condition were not caused by domestic violence. The theme that runs through these regulations is the arbitrary time limit of 24 months and it this ruling which is claimed to be creating an artificial barrier to victims of domestic abuse of being able to apply for Legal Aid. It is quite possible for example for a person to have obtained a Non Molestation Order 25 months ago and for that Order to have run for a typical period of 12 months and will have expired. The victim may not have seen anything more of the perpetrator but the perpetrator might have surfaced 25 months later and be pursuing an application relating to children or financial issues. However, because the Order was made 25 months ago and is no longer in force then this does not come within the regulations, even thought the person responsible for the abuse may pose as much as a risk as they did previously. The 24 month rule therefore creates an illogical cut-out point which may bear little relevance to the actual level of risk at present. It will be interesting to see if the regulations will be reviewed in the future once the full effects of the 24 month timescale can be seen.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/january-2015/charities-challenge-legal-aid-regulations/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/january-2015/charities-challenge-legal-aid-regulations/Wed, 28 January 2015 16:16:00 Understanding The Process For ApplicationParalegalhttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/january-2015/understanding-the-process-for-application/A scheme which allows people to find out if their partner has a history of domestic abuse has been used almost 4,000 times in less than a year statistics have revealed. Clare’s Law, named after Clare Wood who was murdered by partner George Appleton in 2009 who had a record of violence, came into force in March 2014 throughout England and Wales and aims to protect people starting new relationships with partners they fear could have an abusive past. Whilst the scheme can only be a positive thing and is expected to rapidly expand, it’s important people understand the process involved. If they have concerns over a partner’s past, they should bear in mind that the application process will not provide an answer overnight nor can you simply walk into your local police station and leave with the full history of someone. So, what is the procedure when wishing to apply under “Claire’s Law”? If you have concerns that a partner, be it male or female, is being abusive or may pose a risk then you should approach the police. You can also contact the police if you believe a third party i.e. family member or friend may be at risk from a partner by visiting your local Police Station, calling the non-emergency number 101 or speaking to a member of the Police on the street. In the event of an emergency you should always ring 999. After logging a request, you may be required to attend a meeting when your application will be considered further to assess whether there is any risk of domestic abuse, where information from other agencies such as Social Services, the Prison Service and Probation Service will also be taken into account. It can take up to 35 days for police to process the application and complete all the necessary checks and even then it has to be considered whether disclosure is necessary. Whilst protection is the aim of the scheme, previous convictions are treated as confidential and are only disclosed if there is a need to prevent further offences. As the applicant you’ll be informed of the outcome of whether the information won’t be disclosed or whether there is believed to be a potential risk posed to you. It’s also important to remember that support is always available from various agencies and that if you’re worried about the behaviour of a partner, safety plans can be put in place, with or without an application. Whether you’re applying for yourself or a friend/family member, it’s important to know the facts before putting in a request under Clare’s Law and wherever there is immediate threat always contact police.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/january-2015/understanding-the-process-for-application/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/january-2015/understanding-the-process-for-application/Wed, 28 January 2015 11:12:00 Divorce - The Facts and FiguresKirwanshttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/january-2015/divorce-the-facts-and-figures/The following infographic highlights the facts surrounding divorce in the UK. Click the graphic below to view in full and click the individual facts for more information.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/january-2015/divorce-the-facts-and-figures/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/january-2015/divorce-the-facts-and-figures/Tue, 20 January 2015 13:00:00 Don't File a Personal Injury Claim YourselfJames Barkerhttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/january-2015/dont-file-a-personal-injury-claim-yourself/If you've suffered from a Personal Injury, it can be tempting to think that you don’t need to instruct a solicitor to progress a claim for compensation. But in my experience of successfully handling hundreds of Personal Injury cases, the process can often end up confusing clients who will then approach solicitors to pick up proceedings for the claim. I have recently taken on several claims in which the clients have originally decided to progress an injury claim themselves but have become lost and confused by the legal process of making a claim for damages. These clients have become overwhelmed by the process and more often or not the other side’s Insurer or solicitors being evasive, non-co-operational and difficult to deal with. With the vast majority of Solicitor’s firms taking up to 25% of a client’s damages, many telling them that they are at risk of having to pay costs if their claim is unsuccessful, and some Solicitor’s reluctance to take on claims which are not guaranteed winners it is not surprising that some clients originally decide to go it alone. However, this can have consequences in a claim as lack of legal knowledge could prejudice their claim if it is not described and pleaded correctly at the outset. The Defendant and their representative will look to rely upon any inconsistencies and failure to adhere to the correct processes and procedures when looking to potentially defend a claim that is brought against them. It is therefore important that you seek legal advice from a Solicitor before you look to progress a claim for damages as they will be able to guide you through the procedure and help you deal with making a Personal Injury claim as quickly and efficiently as possible.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/january-2015/dont-file-a-personal-injury-claim-yourself/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/january-2015/dont-file-a-personal-injury-claim-yourself/Mon, 19 January 2015 13:13:00 Do Domestic Violence Prevention Orders Work?Solicitor and Higher Court Advocatehttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/january-2015/do-domestic-violence-prevention-orders-work/Many people are asking for advice in relation to a new type of order that is being applied for in the Magistrates Court. They are called Domestic Violence Prevention Orders and came into force in late 2014. There is concern that the orders are being imposed upon individuals without them having been convicted or even charged with criminal offences. The police can apply for the orders to a Magistrates Court which, if successful, the defendant can be banned with immediate effect from returning to a residence and from having contact with the victim for up to 28 days. Quite often the police make the application against the wishes of the alleged victim. Furthermore, the consequences of breaching such an order are potentially severe. The sentencing options of the court are limited to either a fine or custody for up to 2 months. In Liverpool Magistrates Court, defendants are being sentenced to short custodial sentences even where they have no previous criminal convictions. Whilst there is no doubt that in some cases such orders are necessary to prevent violence within the home from occurring, in my experience there are many flaws with the current orders. Applications that are being made against the wishes of the perceived victims are potentially affecting both parties right's to privacy under the European Convention on Human Rights. Furthermore, questions need to be asked whether these orders actually work to address the issues within the home. Separating the parties will of course prevent violence from occurring for what is a relatively short period of time but it does nothing to address the long standing issues within a volatile relationship. Long-term issues that are usually present within a volatile relationship such as alcohol or substance abuse, anger management, stress or jealousy. It's difficult to see how the 28 day separation period addresses any of these issues, in some cases, arguably it would aggravate them. In terms of sentence the limited options available to the court (which are effectively a fine or custody for breaching the order) also appears to be draconian as people are being sentenced to immediate custody even when they have no previous criminal convictions. So therefore there is no option available for intervention or assistance from the probation service to address the underlying issues that are causing the problems in the first place. If there was an option of a community order then probation could assist in successfully rehabilitating offenders by means of domestic violence programmes and anger management. This would seem to make more sense than handing out short custodial sentences which do not address the underlying issues.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/january-2015/do-domestic-violence-prevention-orders-work/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/january-2015/do-domestic-violence-prevention-orders-work/Wed, 14 January 2015 11:14:00 Serious About Proceeds Of Crime ActCriminal Solicitorhttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/january-2015/serious-about-proceeds-of-crime-act/The House of Commons rung in the New Year on the 5 th January with the second reading of the Serious Crime Bill, a seriously serious Bill with the aim of ensuring that law enforcement agencies have effective legal powers to bring to justice serious and organised crime. The Bill contains new laws designed to tackle various serious offences including terrorism, professionals who participate in their client’s criminal activities and cyber crime. One of the many areas of the Bill that will concern libertarians fearful of the growing powers of the State however will be the Bill’s proposed reforms to the Proceeds of Crime Act 2002. The Bill seeks to extend the powers currently enjoyed by the Courts under the 2002 Act, an Act which is already widely regarded by most practitioners as excessive and draconian. These increased powers will come as a disappointment to many practitioners frustrated by the unfairness and unpredictability of the current 2002 Act. The Proceeds of Crime Act is one of the most litigated, misunderstood and misapplied pieces of legislation in the Criminal Justice System. Many would argue that that Government should be repealing the Act in its entirety rather than adding to it. Under the proposed provisions of the Serious Crime Bill the Court’s powers under the 2002 Act will be extended such that judges will be able to make a determination on the extent of any third party interests in property, reduce the maximum time allowed for payment under any confiscation order (which is currently only six months), impose compliance orders (including restrictions, prohibitions and travel bans), increase prison sentences for non payment and lessen the test when the authorities apply for a restraint order. Currently a third party to confiscation proceedings cannot have their interest in property considered by the Court until after the confiscation order is made and then enforced. The Serious Crime Bill will give the Court the power to determine the extent of third party interests in property at the time of making any order. Alas in practice this might not be as easy or as desirable as first thought. Confiscation proceedings are already widely criticised for their complexity and length. Allowing third parties a right of audience to these initial proceedings will inevitably drag the process out even longer. Furthermore, the extent or even the existence of a third party interest is not always known from the outset. It is not difficult to imagine a situation where a third party interest would only ever be discovered after the confiscation order was made and during the secondary enforcement proceedings. The Bill is unclear as to what would happen if that third party interest only came to light after the confiscation order was made. The most worrying change to the 2002 Act will be the shortening of the maximum period of time allowed to pay any sum owed under a confiscation order. Currently six months, the Bill proposes to reduce this to three. The Court can extend this to a maximum of six months but only in exceptional circumstances, where the defendant has made all reasonable attempts to realise his property and the period of extension must be as short as it can be. More often than not the realisable asset determined by the confiscation order will be equity in property. It is far from inconceivable that a person subject to a confiscation order who is already serving a prison sentence will face difficulties realising this equity in such a short space of time. “Serious and organised crime in Britain must be fought on many fronts”, Theresa May told MPs when she launched the new legislation. The Notes accompanying the Bill claim that some defendants would rather serve default prison sentences than pay what is due under a confiscation order. Even if this is true, it is questionable that stricter time limits and longer prisons sentences will assist enforcement of confiscation orders. What does seem inevitable however, is that those defendants who are genuinely unable to satisfy their orders in such a short timeframe will be more heavily penalized. Finally, for those readers curious as to whether there are any positives changes for a defendant proposed by the Bill, under Clause 8 it is now possible for a confiscation order to be discharged where the defendant has died prior to making his final payment. Now that is SERIOUS!http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/january-2015/serious-about-proceeds-of-crime-act/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/january-2015/serious-about-proceeds-of-crime-act/Mon, 12 January 2015 15:09:00 When Should The State Pay For Representation?Paul Hunthttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/january-2015/when-should-the-state-pay-for-representation/There has been a considerable stirring of interest recently regarding a reported case which has suggested that in certain circumstances the state should pay for a person to be legally represented even though they did not qualify for Legal Aid. The sort of cases that are being considered in this and previous cases is when allegations for example are made of domestic violence or sexual abuse and the unrepresented alleged perpetrator would otherwise be free to cross examine the victim. It is easy to see how this could be extremely traumatic and emotionally damaging for a genuine victim especially if we are talking about a child. These type of cases have attracted attention where the alleged perpetrator qualifies on purely financial grounds for legal aid but does not come within the scope of eligibility for representation because of the Government changes to the Legal Aid system in April 2013. There is a system which enables a person to apply for a certificate on the basis of ‘exceptional funding’ but the hurdle has been criticised as being extremely high and only a handful of exceptional funding cases (in single figures) are granted in a 12 month period. What is unusual about this present case is that the unrepresented party does not qualify for legal aid on financial grounds. His disposal income assessed in accordance with Legal Aid agency regulations came to £960 whereas the cut off point for disposal income is £733. The Court was very mindful of the fact that just because a person has a disposable income that is over the prescribed limit does not mean that they have funds easily available for representation in difficult cases and indeed no account is taken when a Legal Aid application is submitted of specific payments for utilities, council tax and phone bills and indeed other general living expenses. While that may be true, it has always been true and those who were just over the limit for legal aid but still did not have substantial means where often in the worst of positions. There is no question of the Court’s filling in the gap left by the removal of Legal Aid from so many family law cases and such payments we would expect would be limited to cases where the consequences of not doing so could be disastrous for the victim. The Courts however may put themselves in a difficult position in attempting to do this where the person is not entitled to legal aid because of their disposable income. The Court has no parallel system in place nor does it have any statutory authority to create one, and either each situation would have to be considered on its own merits or some other cut off point perhaps higher than £733 nevertheless just as arbitrary, might emerge.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/january-2015/when-should-the-state-pay-for-representation/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/january-2015/when-should-the-state-pay-for-representation/Fri, 09 January 2015 13:13:00 Couples Put off Marriage to Live TogetherPaul Hunthttp://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/january-2015/couples-put-off-marriage-to-live-together/Despite the growing costs of having a fairytale wedding day, couples are still clambering up the aisles for the title of Mr and Mrs, with an estimated number of marriages currently at 23.9m. However, the number of people putting off saying ‘I do’ in favour of living together is one that continues to grow. With 5.9m people opting for cohabitation, this is an increasing preference to formal marriage or indeed civil partnership. But with 58% of people surveyed revealing they are unaware that ‘common law marriage’ is a myth, it’s becoming increasingly vital that cohabitees are aware of their legal rights in the event of separation. Currently if parties live together and do not marry or are not in a civil partnership then there are no automatic rights for property sharing or maintenance or pension sharing. Any claims in relation to property can only be dealt with through the narrow channels of trust and property law and a person who has not made any contribution to acquiring or improving the asset and who has not been promised a share in it, will have no rights. Child maintenance applies whether or not the parents are married but there is no provision for maintenance between adults as there would be in the case of a divorce. It is often the case that cohabitation, which is a relationship which does not require any formal ceremony or the recording of any specific starting date, is often accompanied by similar vague notions of financial and property position. Sometimes people only find out the truth when it is too late to do anything about it. It is a subject with which successive Governments are curiously reluctant to deal with because any debate on the subject very quickly involves suggestions that some form of cohabitation breakdown legal framework devalues traditional marriage. It is interesting that there are two private members bills currently being considered by Parliament in Family Law matters; one in relation to cohabitation which seeks to introduce certain rights and entitlements which do not exist at the moment and another dealing with Family Law generally including automatic limitation on the duration of maintenance between spouses. The proposals made within these bills will not meet with everyone’s approval. Some will say that it is wrong to impose a legal framework on people who may have had no intention of creating such relationship simply by living together. With proper information and education people can make decisions with their eyes open about whether or not they want to find themselves in a situation where each pay have claims against the other when they stop living together. Some would say that if you want the full protection that the law affords and the range of remedies available, then you should marry or create a civil partnership if you choose not to do either of these, then essentially you take your chances. Others would say that social attitudes have moved on to such an extent that there should no longer be special status for those who are in formal marriages and that the law should not be treating couples in entirely different ways simply because they have chosen different family structure. There is a definite clear polarisation of views on this subject briefly summarised as on the one hand ‘if you want full protection then marry. Do not expect the state to pick up the pieces for you if you do anything else’. Or at the other extreme ‘the state should not discriminate against people who choose to avoid formal marriage and to establish their households outside traditional structures’. What is of note is that the proposed legislation that is being considered arises from private members bills brought by members of the House of Lords. As such there is not the slightest reason to think that they have a strong chance of actually becoming Law, without Government support. Quite simply there is no Government policy in these specific areas - it has been left to others to attempt to fill the vacuum.http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/january-2015/couples-put-off-marriage-to-live-together/
http://www.kirwanssolicitors.co.uk/blog/rss.aspx/blog/posts/2015/january-2015/couples-put-off-marriage-to-live-together/Thu, 08 January 2015 11:30:00